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Speaker 1: Bloomberg Audio Studios, podcasts, radio News. This is Bloomberg Law.

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Speaker 2: Congress can have no say in making an office independent.

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Speaker 2: I think all agencies need a degree of autonomy. It

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Speaker 2: really tests whether the amendments to.

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Speaker 3: The law have Keith interviews with prominent attorneys and Bloomberg

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Speaker 3: legal experts.

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Speaker 4: Joining me is Constitutional law professor David Super, Bloomberg News,

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Speaker 4: Supreme Court reporter Greg Store.

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Speaker 1: And analysis of important legal issues, cases and headlines.

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Speaker 5: Apples of Waltgarden.

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Speaker 1: They don't license their technology.

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Speaker 5: That is a valid basis to dismiss the case.

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Speaker 3: Bloomberg Law with June Grosso from Bloomberg Radio.

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Speaker 4: Welcome to a special edition of the Bloomberg Law Show.

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Speaker 4: I'm June Grosso. In a few minutes, Chief Justice John

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Speaker 4: Roberts is going to participate in a fireside chat in Buffalo,

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Speaker 4: New York. It's part of the anniversary events for the

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Speaker 4: US District Court for the Western District of New York,

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Speaker 4: which is celebrating its one hundred and twenty fifth anniversary.

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Speaker 4: The Chief Justice was born in Buffalo and spent his

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Speaker 4: early childhood years there, and he's going to be talking

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Speaker 4: with Judge Joseph Fallardo, a federal judge in the Western

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Speaker 4: District who's known the Chief for more than forty years.

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Speaker 4: We'll bring that conversation to you live as soon as

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Speaker 4: it begins. My guest is constitutional law expert Harold Krant,

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Speaker 4: a professor at the Chicago Kent College of Law. How

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Speaker 4: the Chief has done a lot of these q and

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Speaker 4: as over the years, often at law schools or judiciary conferences,

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Speaker 4: but I don't recall one that was live. Is it

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Speaker 4: sort of outside the chief's comfort zone.

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Speaker 2: I think he's trying to take an opportunity to ensure

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Speaker 2: that the Court is viewed as an independent player and

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Speaker 2: is viewed with some respect. Obviously, there's no secret that

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Speaker 2: the Court has taken a hit in terms of its

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Speaker 2: reputation over the last five to ten years, and particularly

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Speaker 2: now there's tumultuous times because of the confrontation potential confrontation

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Speaker 2: with the Trump administration. I think he's taking every opportunity

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Speaker 2: to talk and be seen as an independent, constructive force

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Speaker 2: in the American system.

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Speaker 4: So this comes at a time, as you sort of

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Speaker 4: mentioned there, when the judiciary is under attack. Last week,

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Speaker 4: Justice Katanji Brown Jackson denounced what she called relentless attacks

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Speaker 4: on the federal judiciary, saying efforts to intimidate judges are

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Speaker 4: threatening the constitution and the rule of law. And all

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Speaker 4: through this, the Chief has issued just one statement pushing

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Speaker 4: back against President Trump's call to impeach a federal judge

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Speaker 4: that he called a radical left lunatic. It was a

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Speaker 4: rare public signal from the Chief. Should we expect something

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Speaker 4: more in that vein tonight.

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Speaker 2: I don't think it's going to be the entire focus

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Speaker 2: of the talk, but I absolutely expect that the Chief

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Speaker 2: to take this opportunity to try to remind the listeners

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Speaker 2: and viewers of how important judicial independence is, and I

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Speaker 2: think it is ever more important.

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Speaker 4: And I wonder if you'll address the threats against judges

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Speaker 4: that are on the rise, judges particularly who have ruled

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Speaker 4: against the Trump administration and their families. For instance, there

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Speaker 4: were more than six hundred calls and emails that flooded

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Speaker 4: Rhode Island Judge John McConnell's courthouse, including death threats and

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Speaker 4: menacing messages taunting his family after he ruled against Trump

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Speaker 4: on the freeze on federal grants. That's according to Reuter's

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Speaker 4: and the Chief has mentioned this before in his end

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Speaker 4: of year statements.

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Speaker 2: I wouldn't be surprised. I mean, what we've seen here

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Speaker 2: is largely unprecedented, not completely, but largely unprecedent in our history.

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Speaker 2: And the idea that you intimidate judges, or even the

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Speaker 2: idea of impeaching judges with whom you disagree, undermines the whole,

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Speaker 2: very fabric of what we hope to be an independent judiciary.

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Speaker 2: So my guess is that the Chief Justices again will

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Speaker 2: not focus entirely on these attacks, but that somehow he

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Speaker 2: will weave them into the conversation.

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Speaker 4: And I'm assuming there won't be any aggressive questioning by

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Speaker 4: his friend of forty years. Maybe the questions are even

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Speaker 4: discussed beforehand.

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Speaker 2: That would be my guess as well.

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Speaker 4: The Trump administration has filed an unprecedented number of emergency

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Speaker 4: requests with the Supreme Court twelve emergency requests in its

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Speaker 4: first one hundred and one days, and that's more than

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Speaker 4: during the entirety of the George W. Bush and Obama

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Speaker 4: administrations combined, and even before this, several justices have complained

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Speaker 4: in the past about the impact of the Court's growing

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Speaker 4: emergency or shadow docket and the cases they're deciding without

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Speaker 4: briefing and argument, So that seems to be a pro

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Speaker 4: problem that's percolating.

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Speaker 2: Yeah, the trend is clear, and it does put a

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Speaker 2: monkey ranch into the orderly system of arguments, deliberations and

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Speaker 2: then written opinions. To the Court's credit, originally, in the

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Speaker 2: last couple of years, it decided these so called shadow

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Speaker 2: docket cases without any kind of written decisions, sometimes just

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Speaker 2: in order. And now at least it's trying to give

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Speaker 2: some explanation or rationale for why deciding what it, you know,

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Speaker 2: whatever it does. And the difficulty in the shadow docket

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Speaker 2: is not just the lack of argument or the lack

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Speaker 2: of opinions, is that the court is rushed. It's got

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Speaker 2: all of its normal work to do, and in these

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Speaker 2: preliminary postures of these cases, lots of important issues are

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Speaker 2: decided and it's not always clear about the court's reasoning

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Speaker 2: and what should happen next. So this shadow docket is

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Speaker 2: creating a kind of confusion, and Theydministration is pressuring the

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Speaker 2: Court with all of its requests, and I think they're

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Speaker 2: going to continue. I foresee that this may go right

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Speaker 2: through the summer and require the Court to act even

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Speaker 2: when it's normally on recess.

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Speaker 4: And perhaps it will extend the length of the court session,

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Speaker 4: because the court usually ends by the end of June.

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Speaker 4: Last year it ended July first, But now they've scheduled

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Speaker 4: an argument session for the middle of May on Trump's

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Speaker 4: birthright citizenship executive order. So I mean it might even

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Speaker 4: cause the normal docket to get slowed down.

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Speaker 2: Absolutely, and I foresee other case. And we're in an

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Speaker 2: unprecedented time. I think there's about two hundred and twenty

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Speaker 2: cases now focused against the Trump administration pending, and obviously

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Speaker 2: in any case, there could be a nationwide injunction. And

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Speaker 2: if there's a nationwide injunction, that usually will spark this

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Speaker 2: effort by the Trump Department of Justice to seek an

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Speaker 2: emergency stay from the nationwide injunction. And that's the dynamic

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Speaker 2: that seeing right now. Congress is considering whether to pare

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Speaker 2: down the power of courts to issue nationwide injunctions. There

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Speaker 2: are excellent arguments on both sides of that issue, but

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Speaker 2: that really is the reality now because every time a

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Speaker 2: nationwide injunction is issued that will ben against the Trump administration,

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Speaker 2: it will force the administration's hands and most of the

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Speaker 2: time that they're going to come to the Supreme Court

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Speaker 2: to ask for relief. So far, it's a mixed record

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Speaker 2: in the Supreme Court during these first hundred days, and

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Speaker 2: I think that that will probably continue, and my guess

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Speaker 2: is we'll continue through the summer.

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Speaker 4: We are waiting to hear from Chief Justice John Roberts

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Speaker 4: in a q and a session in Buffalo, New York

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Speaker 4: called a fireside chat. He's going to be talking with

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Speaker 4: federal Judge Joseph Volardo, who's a federal judge in the

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Speaker 4: Western District, which is selling its one hundred and twenty

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Speaker 4: fifth anniversary. I've been talking to Harold Krantz, professor at

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Speaker 4: the Chicago Kent College of Law. How an opinion yesterday

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Speaker 4: not an opinion in order yesterday sort of veered from

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Speaker 4: what you were describing before because there was absolutely no explanation.

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Speaker 4: It was in order allowing the Trump administration to start

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Speaker 4: discharging transgender service members, and there were three descents, but

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Speaker 4: no written explanation from either the conservative justices in the

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Speaker 4: majority or the three dissenting members on a question that

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Speaker 4: I think a lot of people would be wondering why

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Speaker 4: the Court lifted an injunction, and in doing so, the

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Speaker 4: status quo will be disturbed because the transgender members of

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Speaker 4: the military will now be starting to be discharged.

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Speaker 2: Yeah, And I think the from a legal perspective, everybody

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Speaker 2: is left wondering what has motivated the majority's decision, because

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Speaker 2: there are two principal components of this injunctive relief. One

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Speaker 2: is likelihood of success on the merits or the other

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Speaker 2: is likelihood of irreparable injury. The court may view a

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Speaker 2: discharge as being not rising to a level of irreparable

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Speaker 2: injury because ultimately the service members can be reinstated and

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Speaker 2: they can receive back pay. That's one possibility. It may

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Speaker 2: not be the reason. Otherwise, they may decide that it's

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Speaker 2: a strong the government has a strong case on the merits,

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Speaker 2: namely that the equal protection claim that's been raised by

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Speaker 2: these servicemen service individuals, they may find to be very weak,

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Speaker 2: even though to many observers it's quite at least strong,

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Speaker 2: even if it's not victorious. So people are left shaking

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Speaker 2: their heads as to what motivated the court's decision. And

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Speaker 2: only in the future will I think this may be

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Speaker 2: in a different case, will the court's reasoning become clear.

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Speaker 4: And also I was really surprised that there wasn't one

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Speaker 4: dissenting opinion from the three liberal justices who did dissent,

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Speaker 4: but there was no opinion. I thought there might be

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Speaker 4: some kind of sort of outrage type opinion saying that,

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Speaker 4: you know, this isn't the way we should go.

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Speaker 2: Yeah, And just as Katanji Brown Jackson is the one

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Speaker 2: that's been the most articulate on the issue of how

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Speaker 2: this is not the way that the Court should decide

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Speaker 2: important questions with real world consequences, and maybe she just

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Speaker 2: didn't want to repeat herself, or maybe she wanted to

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Speaker 2: save the ammunition for another day. And obviously many people

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Speaker 2: have looked at this birthright citizenship issue that's being heard

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Speaker 2: on May fifteenth as really one of the most sort

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Speaker 2: of bellcow of all the executive orders, and so maybe

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Speaker 2: she wants to save her rhetoric for that case, though

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Speaker 2: I tend to think she's going to be the majority

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Speaker 2: of that case. But maybe I'm getting ahead of myself.

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Speaker 4: Well, because that case. I was also surprised that they

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Speaker 4: scheduled oral argument, because that's a case where every judge,

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Speaker 4: I think four out of four judges who ruled on

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Speaker 4: it below Federal Court judges found that it was, you know,

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Speaker 4: an unconstitutional executive order. So why is the Supreme Court

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Speaker 4: taking that particular case.

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Speaker 2: They are bending backwards to some extent to try to

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Speaker 2: give the Trump administration the benefit of the doubt, to

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Speaker 2: give them a chance to tell their side of the story.

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Speaker 2: They know how important this is to the Trump administration,

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Speaker 2: because it was, at least in some people's minds, the

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Speaker 2: signature the executive order. Of all the amazing executive orders

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Speaker 2: that we've seen, that's the only thing I can think of,

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Speaker 2: because you're right, there is no there's no need. There's

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Speaker 2: also put in the circuits, there is no real reason

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Speaker 2: to decide the case other than a respect for the administration.

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Speaker 2: And I think that is something that is consistent with

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Speaker 2: Chief Justicebert's sort of view is he wants to make

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Speaker 2: sure that the administration gets every fair chance, but he

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Speaker 2: also wants mutual respect. He wants to get respect back

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Speaker 2: from the Trump administration, and maybe this is part of

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Speaker 2: his strategy.

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Speaker 4: I'm hanging over this, and I don't think this will

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Speaker 4: be a question that will be asked. But the fact

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Speaker 4: that last Sunday on Meet the Press, I believe it

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Speaker 4: was the President of the United States said he wasn't sure,

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Speaker 4: he didn't know if he had to uphold the Constitution

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Speaker 4: of the United States, and in his last term he

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Speaker 4: would talk about his Article two powers. So that seemed

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Speaker 4: like a really strange statement to make, and I think

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Speaker 4: that people will be thinking about that, although I doubt

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Speaker 4: that the Chief Justice is going to comment on that.

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Speaker 2: Yeah, I would be shocked and the Chief Justice comment

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Speaker 2: on about meet the press. But it almost sounded to

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Speaker 2: me as more presidential Trump's rambling, because I think that

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Speaker 2: he knows that the Constitution applies to him. I mean,

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Speaker 2: he may interpret the Constitution differently than others, and that's

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Speaker 2: it right to a certain large extent, except not in

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Speaker 2: a particular decided case or controversy, but in general, he

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Speaker 2: can disagree with others views of the Constitution, but he

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Speaker 2: knows it applies to him, even if there are different

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Speaker 2: views of what in fact Article two or two process means.

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Speaker 4: And there's been a lot of talk lately. I mean

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Speaker 4: you could if you google it, you'll see so many

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Speaker 4: articles on what happens if the president doesn't obey a

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Speaker 4: court order. And you know, we've seen in various instances

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Speaker 4: that you know, it seemed like critics say that the

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Speaker 4: Trump administration hasn't been obeying all court orders. So at

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Speaker 4: what point does the judiciary, you know, take a strong stance,

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Speaker 4: perhaps start issuing different kind kinds of you know, start

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Speaker 4: subpoenaing people and perhaps holding people in civil or criminal content.

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Speaker 4: I mean, what do you think it will take before

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Speaker 4: that happens.

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Speaker 2: That's the course, the start of the constitutional crisis. I

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Speaker 2: still hope that it doesn't occur and that the cooler

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Speaker 2: heads will prevail, but I certainly wouldn'tly would bet against

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Speaker 2: myself and that there may be a crisis at some point.

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Speaker 2: We came closest, probably in the Breaco Garcia case you

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Speaker 2: call the instance where someone, unfortunately the Maryland individual was

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Speaker 2: mistakenly deported to El Salvador, where he's still languishing, evidently,

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Speaker 2: and the court there ordered a return to the United States,

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Speaker 2: and the administration evidently sort of just sort of ignored it.

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Speaker 2: And the Supreme Court did come in there and said

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Speaker 2: as a compromise that the administration must at least facilitate

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Speaker 2: his return to the United States. They try to sort

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Speaker 2: of dodge a direct confrontation by using the term facilitate,

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Speaker 2: which is somewhat of a more ambiguous term as opposed

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Speaker 2: to ordering his return by a particular date. So the

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Speaker 2: court's aware and it doesn't want to have this direct confrontation,

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Speaker 2: but it knows it's lurking out there. And you know,

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Speaker 2: the courts have very few levers to pull in terms.

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Speaker 2: As you pointed out, civil contempt is certainly one of them.

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Speaker 2: Fiery rhetoric is another, and we've seen some judges amp

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Speaker 2: up their rhetoric. But at the end of the day,

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Speaker 2: as Andrew Jackson reportedly said one hundred and fifty years ago,

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Speaker 2: the enforcement powers rest with the president, not with the courts.

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Speaker 4: And a perfect time to end that quot and that answer,

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Speaker 4: because right now the Chief Justice is taking his seat.

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Speaker 4: They're sitting in large chairs sort of like you'd see

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Speaker 4: in a judge's chamber, and he's sitting down now at

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Speaker 4: two applause, let's listen.

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Speaker 5: Well, it's it's really is an honor to be here

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Speaker 5: with you and to rekindle our old friendship that started

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Speaker 5: forty seven years ago.

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Speaker 1: Wow, yeah, long time, you haven't aged, haven't aged a bit? No,

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Speaker 1: you haven't. You haven't haven't.

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Speaker 5: Changed a bit. So so folks from Buffalo are very

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Speaker 5: proud to say that you're a native son here you

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Speaker 5: spent the first ten years of your life in Hamburg, right,

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Speaker 5: what do you remember about growing up in Buffalo?

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Speaker 1: It's cold.

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Speaker 3: No, the memories were refreshed earlier this morning. I went

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Speaker 3: back and visited my boyhood home, which was a lot

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Speaker 3: smaller than I remember, and it was near the fair

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Speaker 3: grounds for those of you around here, and we would

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Speaker 3: I remember hearing the call to the post, you know,

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Speaker 3: the when they were because they did racing there on weekends.

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Speaker 3: And we would set up lawn chairs in the driveway

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Speaker 3: because when they had concerts too, and about the concert

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Speaker 3: without having to pay for it.

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Speaker 5: So where'd you go to school?

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Speaker 1: Saint Brendette's.

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Speaker 5: Yeah, and that's where my wedding was. Oh yeah, so

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Speaker 5: we closed the closed last week. Yeah, I heard, That's

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Speaker 5: what I heard. So when we were in law school

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Speaker 5: and particularly on the Law Review, people saw you as

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Speaker 5: very bright, a good writer, ambitious in going places. Did

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Speaker 5: you let yourself dream about being on the Supreme Court then?

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Speaker 1: No?

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Speaker 3: No, I didn't dream about being a judge. I didn't

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Speaker 3: dream about being a lawyer. Before then. I was going

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Speaker 3: to go to uh graduate school to study in history

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Speaker 3: and true story. I was taking a cab back from

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Speaker 3: Logan Airport to the campus, and the cab driver asked

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Speaker 3: me what I did and I told him I was

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Speaker 3: a history major at Harvard.

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Speaker 1: He said, I was a history major at Harvard.

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Speaker 3: Yeah, that's why I said, where are those where's that

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Speaker 3: law school application file? But uh, when I got to

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Speaker 3: law school, I found out that I liked it, but

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Speaker 3: I certainly didn't want to be a a judge. And then, uh,

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Speaker 3: you know, ended up clerking and working at in the

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Speaker 3: government and in law firm for a while, and you know,

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Speaker 3: it just sort of happened that you end up in

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Speaker 3: a position where someone decides to nominate you to be

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Speaker 3: a judge. And by that time I had been practicing

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Speaker 3: long enough I thought it would be a good, good change,

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Speaker 3: and that worked out, and then you know, the Supreme

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Speaker 3: Court fortuitously came long after that.

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Speaker 5: Yeah, so your your career started as in was by

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Speaker 5: and large as an appellate lawyer.

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Speaker 1: How how did that happen?

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Speaker 3: Well, I came off of the government work that I

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Speaker 3: had been doing. I had spent a total of seven

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Speaker 3: years between the clerkships and at stint in the Justice

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Speaker 3: Department and some time at the White House Counsel's Office.

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Speaker 3: So when I left that I'd been out seven or

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Speaker 3: eight years and hadn't really practiced normal law, and I

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Speaker 3: didn't want to start, you know, the seminar whatever for

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Speaker 3: first year students to learn how to take a deposition.

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Speaker 3: So I went around at law firms and they would say,

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Speaker 3: what do you want to do? I said, well, the

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Speaker 3: one thing I thought I could do. I said, I

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Speaker 3: want to do a pellet work. And they said, oh, okay,

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Speaker 3: you know, if the case you're handling goes on appeal,

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Speaker 3: you can do a pellet work. And I said, no, no,

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Speaker 3: I only want to do a pellet work. And nobody

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Speaker 3: was buying that until I ran into a fellow named

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Speaker 3: Barrett Prettyman, who that's what he did. It was at

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Speaker 3: the firm of Hogan and Hartson, and he was an amazing,

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Speaker 3: amazing man, and I decided I would like to work

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Speaker 3: with him, and that was fine with him.

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Speaker 1: He had been extraordinary life.

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Speaker 3: The courthouse in DC is named after his father, who

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Speaker 3: was a very prominent judge. But Barrett, at age eighteen,

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Speaker 3: left you know, high.

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Speaker 1: School in d C.

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Speaker 3: And went to England and then joined the Patent's Army,

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Speaker 3: you know, you know, hurtling toward Berlin and they were

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Speaker 3: ambushed and his unit found themselves in these.

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Speaker 1: Fox holes, terrible cold.

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Speaker 3: Through the night, and the you know Germans are sort

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Speaker 3: of picking them off one by one.

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Speaker 1: And he swore that if he made it to the morning,

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Speaker 1: he would wake up happy every day. And he made

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Speaker 1: it through.

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Speaker 3: He had frostbite. They took him back to the you know,

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Speaker 3: back to Belgium. His the rest of his unit went

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Speaker 3: in and they were going right into the Battle of

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Speaker 3: the Bulge and they were all killed.

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Speaker 1: So he kept his he kept his file.

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Speaker 3: As far as I could tell, it was a very

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Speaker 3: upbeat person, very very you know, pretty much everybody else

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Speaker 3: there were law walls had pictures of you know, fox

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Speaker 3: hunting or old English judges, and you know, he had

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Speaker 3: pictures of clients like Truman Capoti and Catherine Anne Porter

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Speaker 3: and really and he had a great, great attitude, and

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Speaker 3: I really enjoyed practicing law with him, and.

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Speaker 5: He woke up happy every day even after he started

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Speaker 5: working with you.

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Speaker 3: Yeah, I never heard that, yeah, yeah.

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Speaker 5: So so I said, you were a hard worker on

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Speaker 5: the lower of you and you really were, but you

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Speaker 5: had some time for fun as well. And I told

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Speaker 5: Tim Metzlaf, who's a professor Duke that I would ask

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Speaker 5: you to tell these folks about pencil ball.

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Speaker 3: Yeah, Tom, and I spent more time playing pencil ball

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Speaker 3: at the law review than working on the law review stuff.

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Speaker 1: It was a very complicated thing.

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Speaker 3: You get a little piece of paper and put some

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Speaker 3: tape around it, and then with pencils. Somebody would pitch

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Speaker 3: the ball and you try to hit it with a pencil, and.

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Speaker 5: You have to this elaborate scoring system too. Right, a

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Speaker 5: triple if you got in the waistbasket, it was a triple. Right,

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Speaker 5: if it ended up sticking to the ceiling, it was

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Speaker 5: a homer.

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Speaker 1: I forget. Well, yeah, it was very complicated.

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Speaker 5: They never let me play.

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Speaker 1: The rules evolved as each game went on.

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Speaker 5: I was an underclassman, so they never let me play,

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Speaker 5: but they played the pencil ball game. So you interviewed

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Speaker 5: for clerkships yourself, and you now interview candidates for clerkships.

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Speaker 5: Any pointers you have for folks when they.

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Speaker 3: Interviewed, Well, one year when I was interviewing people, I

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Speaker 3: was looking with law clerks and probably you do as well.

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Speaker 3: You want people with some degree of self reliance and confidence.

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Speaker 1: So I thought.

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Speaker 3: Laid out a dozen half glazed and half powdered donuts

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Speaker 3: out in the waiting area, and I figured one it

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Speaker 3: would be a good sign of whoever.

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Speaker 1: It was liked donuts.

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Speaker 3: And also if they had enough selfish insurance to have one,

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Speaker 3: even though their hands would have glazing or powder on them.

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Speaker 3: When they came in end of the day, a dozen

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Speaker 3: doughnuts still there. So everybody, everybody failed that. Now, I

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Speaker 3: had some bad experiences of my own.

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Speaker 1: This goes.

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Speaker 3: It was back when they were some justices were still

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Speaker 3: hiring people right out of law school, and Justice White

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Speaker 3: was one of them, and I was scheduled for an

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Speaker 3: interview with him, and I went down to Washington and

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Speaker 3: they had just opened the new metro system just opened,

401
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Speaker 3: and you know, you put your money in and you

402
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Speaker 3: get a fair card and all that. I don't think

403
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Speaker 3: they do this anymore. I'm sure they fixed it back then.

404
00:23:39,520 --> 00:23:44,200
Speaker 3: But all I had was you know, a twenty, you know,

405
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Speaker 3: and put it in and got put in the fair.

406
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Speaker 3: It was forty cents to Union Station, so I got

407
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Speaker 3: nineteen dollars and sixty cents in quarters or whatever. It

408
00:23:56,440 --> 00:23:58,480
Speaker 3: was like in Las Vegas, the coort it just kept

409
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Speaker 3: punching out, but you know I was a law student.

410
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Speaker 1: I wasn't going to leave him there.

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Speaker 3: So I put some here and some in here in

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Speaker 3: these other pockets. And I walked into Justice White's chambers

413
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Speaker 3: and I was jiggling, jingling, you know, A jingle kind

414
00:24:14,640 --> 00:24:16,800
Speaker 3: of looks strange at me, you know, And I crossed

415
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Speaker 3: my legs and a dollar fifty I didn't get I didn't.

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Speaker 1: Get an offer from that.

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Speaker 5: Tom Metzloff got that job, right, he cleared, Yeah.

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Speaker 1: Dad, tom My pencil ball opponent got the job.

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Speaker 6: Yeah.

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Speaker 5: Yeah. So you really are a terrific writer. And you

421
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Speaker 5: were back in law school as well. I still remember

422
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Speaker 5: you're telling me that if I had a sentence that

423
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Speaker 5: had three prepositional phrases or more, go back and rewrite

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Speaker 5: the sentence because the sentence needed rewriting. Where'd you learn

425
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Speaker 5: to write? And is there any one person who your

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Speaker 5: credit for teaching you how to write? Well?

427
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Speaker 1: I think the way to learn to write is to

428
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Speaker 1: read good writing.

429
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Speaker 3: And I read a lot. I liked Conrad, I liked

430
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Speaker 3: and Elmore Leonard. I mean, Joseph Conrad if you want

431
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Speaker 3: to write long and flowing, elegant sentences, and Elmore Leonard

432
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Speaker 3: if you like punchy sentences, and I think that helped

433
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Speaker 3: a lot.

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Speaker 1: When it came to writing briefs. Though I had a

435
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Speaker 1: secret weapon.

436
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Speaker 3: I have three sisters, none of them are none of

437
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Speaker 3: them is a lawyer, and yet they're, you know, very bright,

438
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Speaker 3: and I would send, for most cases, a copy of

439
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Speaker 3: the draft brief to them and ask them to read it.

440
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Speaker 3: Read it once, and then I called them and ask

441
00:25:40,760 --> 00:25:43,680
Speaker 3: them what it was about and who should win? And

442
00:25:43,960 --> 00:25:46,840
Speaker 3: if you're writing, isn't clear enough for somebody who is

443
00:25:46,880 --> 00:25:50,760
Speaker 3: an intelligent layperson to get through it and to understand,

444
00:25:51,240 --> 00:25:54,040
Speaker 3: you know, basically what's going on. I mean, you know,

445
00:25:54,040 --> 00:25:56,560
Speaker 3: they wouldn't say, oh, you know, under Arrista this or that,

446
00:25:56,600 --> 00:25:58,679
Speaker 3: but they say, you know, the guy who you know,

447
00:25:59,119 --> 00:26:01,520
Speaker 3: you know is driving the truck, you know should have

448
00:26:01,560 --> 00:26:04,359
Speaker 3: looked left and he looked right, and you know the

449
00:26:04,400 --> 00:26:06,520
Speaker 3: safety break didn't work so the other person could pay

450
00:26:06,560 --> 00:26:08,399
Speaker 3: and if it was the right answer, and you know,

451
00:26:09,160 --> 00:26:11,320
Speaker 3: because I see it today and I bet you do too.

452
00:26:11,359 --> 00:26:15,520
Speaker 3: When you read so many briefs and read them carefully.

453
00:26:15,600 --> 00:26:17,879
Speaker 3: But it's not like you can devote as much attention

454
00:26:18,040 --> 00:26:19,560
Speaker 3: to you know, becover.

455
00:26:19,560 --> 00:26:21,760
Speaker 1: In many cases you're hearing.

456
00:26:21,600 --> 00:26:23,600
Speaker 3: So you want to make sure that somebody who's going

457
00:26:23,680 --> 00:26:26,159
Speaker 3: to read through it once, maybe a little more quickly

458
00:26:26,200 --> 00:26:29,440
Speaker 3: than you'd like, really gets the gist of what you want.

459
00:26:31,119 --> 00:26:34,600
Speaker 3: The other thing I'd liked to do is read aloud

460
00:26:35,160 --> 00:26:37,639
Speaker 3: and again, no matter how complicated it was, you should

461
00:26:37,680 --> 00:26:40,359
Speaker 3: be able to stand up and read it to somebody

462
00:26:40,880 --> 00:26:44,200
Speaker 3: and have them basically follow. I mean, otherwise your sentences

463
00:26:44,200 --> 00:26:48,320
Speaker 3: are too convoluted, not direct enough. And I think those

464
00:26:48,320 --> 00:26:52,680
Speaker 3: are two things that serve me. Well, you still trying.

465
00:26:52,480 --> 00:26:52,760
Speaker 5: To do that.

466
00:26:52,840 --> 00:26:56,040
Speaker 4: You're listening to Chief Justice John Roberts in a conversation

467
00:26:56,200 --> 00:26:58,280
Speaker 4: with federal Judge Joseph Bullard.

468
00:26:58,040 --> 00:27:01,920
Speaker 3: Complaining and walking down the halls. They're reading out loud

469
00:27:02,000 --> 00:27:02,359
Speaker 3: and they.

470
00:27:03,800 --> 00:27:07,919
Speaker 5: They don't do that. But you're trying to make your

471
00:27:07,920 --> 00:27:08,879
Speaker 5: decisions accessible.

472
00:27:09,200 --> 00:27:10,920
Speaker 3: Well, and yeah, and I'll tell you, I mean, it's

473
00:27:10,920 --> 00:27:14,879
Speaker 3: not in their cases where you know, you don't necessarily

474
00:27:14,920 --> 00:27:17,480
Speaker 3: study every brief and if you can't, if you file

475
00:27:17,520 --> 00:27:20,560
Speaker 3: a brief and you can't, I can't read through it once.

476
00:27:21,240 --> 00:27:22,520
Speaker 1: You know it's gonna be okay.

477
00:27:22,520 --> 00:27:24,199
Speaker 3: I've got to read through it twice, and you know,

478
00:27:24,440 --> 00:27:26,080
Speaker 3: sit down with a law clerk and say.

479
00:27:26,240 --> 00:27:27,399
Speaker 1: What do you think this is about?

480
00:27:28,200 --> 00:27:31,479
Speaker 3: I think people place too much emphasis on like showing

481
00:27:31,480 --> 00:27:37,040
Speaker 3: off their intellectual sophistication or the nuances, instead of just

482
00:27:37,080 --> 00:27:40,080
Speaker 3: being very direct in your writing. And I always think,

483
00:27:40,680 --> 00:27:43,720
Speaker 3: particularly in the cert petitions, when I was doing those,

484
00:27:44,119 --> 00:27:46,520
Speaker 3: it's very hard. I don't know what the rate is now,

485
00:27:46,600 --> 00:27:50,840
Speaker 3: two percent or less than that, get granted. I always

486
00:27:50,840 --> 00:27:53,200
Speaker 3: thought it was important to put something in that would

487
00:27:53,200 --> 00:27:59,400
Speaker 3: catch somebody's eye. Even I had a case once involving

488
00:28:00,200 --> 00:28:03,720
Speaker 3: mining in Alaska, and it involves something called the Red

489
00:28:03,760 --> 00:28:08,960
Speaker 3: dog mine out in the middle of Alaska, and so

490
00:28:09,040 --> 00:28:11,119
Speaker 3: I figured maybe it would help. So I put in

491
00:28:11,160 --> 00:28:13,520
Speaker 3: the first page and a half is about why it

492
00:28:13,680 --> 00:28:17,240
Speaker 3: was called the Red dog mine. And it was because

493
00:28:17,920 --> 00:28:20,040
Speaker 3: you get these stories in Alaska where somebody has to

494
00:28:20,040 --> 00:28:23,359
Speaker 3: fly out to get emergency insulin and they fly and

495
00:28:23,400 --> 00:28:25,199
Speaker 3: this was the flying back of the guy who had

496
00:28:25,200 --> 00:28:28,040
Speaker 3: his plane. He always had this red dog, you know,

497
00:28:28,119 --> 00:28:31,800
Speaker 3: in his plane, and the plane coming back crashes, but

498
00:28:31,840 --> 00:28:34,199
Speaker 3: the dog, you know, survives, the pilot doesn't, and the

499
00:28:34,200 --> 00:28:36,800
Speaker 3: dog runs to the village and they, you know, they

500
00:28:36,840 --> 00:28:39,680
Speaker 3: get the insulin and all that and and then hopefully

501
00:28:39,680 --> 00:28:43,040
Speaker 3: you'll read on and it's about some mining regulations or something.

502
00:28:43,720 --> 00:28:46,800
Speaker 3: And when one of the but hear me when I

503
00:28:46,800 --> 00:28:50,120
Speaker 3: got on the court. The first thing Justice O'Connor said

504
00:28:50,120 --> 00:28:51,880
Speaker 3: to me when we were sitting down for lunch, and I.

505
00:28:51,960 --> 00:28:54,840
Speaker 1: Said, I love that story about the dog.

506
00:28:57,800 --> 00:28:59,840
Speaker 3: But I mean they denied certain but that you know

507
00:29:00,080 --> 00:29:02,000
Speaker 3: that happened, but they read it.

508
00:29:02,160 --> 00:29:04,440
Speaker 1: But I bet you finished reading it too.

509
00:29:05,360 --> 00:29:09,160
Speaker 5: So when I write decisions, I tell my law clerks that,

510
00:29:09,560 --> 00:29:11,200
Speaker 5: you know, half the people who read the decision are

511
00:29:11,240 --> 00:29:13,520
Speaker 5: going to think I'm an idiot because they lost. But

512
00:29:13,560 --> 00:29:16,440
Speaker 5: I want them to at least understand why I'm an idiot,

513
00:29:16,480 --> 00:29:18,840
Speaker 5: at least why I made the decision that I made

514
00:29:19,680 --> 00:29:22,760
Speaker 5: in the case. Because I think it's important to write

515
00:29:22,800 --> 00:29:26,880
Speaker 5: so that it's accessible for people, and judges, you know,

516
00:29:26,960 --> 00:29:28,240
Speaker 5: do the same thing. I think.

517
00:29:28,720 --> 00:29:29,040
Speaker 1: I think.

518
00:29:29,080 --> 00:29:33,520
Speaker 5: So let's talk about something a little more important, a

519
00:29:33,520 --> 00:29:37,240
Speaker 5: little more substantive. I think most judges would agree that

520
00:29:37,560 --> 00:29:39,920
Speaker 5: judicial independence is crucial.

521
00:29:41,520 --> 00:29:42,040
Speaker 1: Do you agree?

522
00:29:42,440 --> 00:29:43,440
Speaker 5: What do you think? Oh?

523
00:29:43,880 --> 00:29:45,080
Speaker 1: Yeah, I mean it's central the.

524
00:29:46,960 --> 00:29:53,040
Speaker 3: Only real political science innovation in our constitution. I mean,

525
00:29:53,080 --> 00:29:56,400
Speaker 3: you know, parliaments have been around for eight hundred years,

526
00:29:56,440 --> 00:30:04,680
Speaker 3: and obviously executives is the establishment of an independent judiciary.

527
00:30:05,200 --> 00:30:08,640
Speaker 3: Even places you think are similar to ours like England.

528
00:30:09,200 --> 00:30:14,000
Speaker 3: The judiciary in England was part of Parliament. I mean

529
00:30:14,080 --> 00:30:18,680
Speaker 3: they sat in the House of Lords and because Parliament

530
00:30:18,800 --> 00:30:24,040
Speaker 3: was supreme. But in our constitution, judges and the judiciary

531
00:30:24,240 --> 00:30:28,720
Speaker 3: is a co equal branch of government, separate from the others,

532
00:30:28,840 --> 00:30:34,280
Speaker 3: with the authority to interpret the Constitution as law and

533
00:30:34,480 --> 00:30:39,200
Speaker 3: strike down obviously acts of Congress or acts of the President.

534
00:30:39,360 --> 00:30:43,520
Speaker 3: And that innovation doesn't work if it's not. The judiciary

535
00:30:43,560 --> 00:30:44,440
Speaker 3: is not independent.

536
00:30:45,360 --> 00:30:46,520
Speaker 1: Its job is to.

537
00:30:48,040 --> 00:30:51,960
Speaker 3: Obviously decide cases, but in the course of that check

538
00:30:52,040 --> 00:30:55,360
Speaker 3: the excesses of Congress or of the executive and that

539
00:30:55,400 --> 00:30:57,360
Speaker 3: does require degree of independence.

540
00:31:05,960 --> 00:31:07,640
Speaker 5: What do you think of these costs for impeachment of

541
00:31:07,720 --> 00:31:10,400
Speaker 5: judges based on the decisions that they've made.

542
00:31:11,160 --> 00:31:13,760
Speaker 3: Well, I've already spoken to that, and you know, impeachment

543
00:31:13,880 --> 00:31:17,040
Speaker 3: is not how you registered disagreement with decisions.

544
00:31:17,800 --> 00:31:20,040
Speaker 5: That's what you're for, right, That's what you're there for.

545
00:31:20,160 --> 00:31:21,040
Speaker 1: That's what we're there for.

546
00:31:22,560 --> 00:31:26,880
Speaker 5: So lots of decisions that you make interpreting the Constitution

547
00:31:27,080 --> 00:31:31,280
Speaker 5: have have real life, practical consequences. So just as a

548
00:31:31,320 --> 00:31:35,440
Speaker 5: for example, the Second Amendment decisions result in more people

549
00:31:35,480 --> 00:31:41,600
Speaker 5: having guns, and the Obamacare decision resulted in more people

550
00:31:41,680 --> 00:31:46,720
Speaker 5: having health insurance. Oberg Fell resulted in more same sex marriages.

551
00:31:48,040 --> 00:31:52,000
Speaker 5: Do you think about those practical consequences when you're interpreting

552
00:31:52,280 --> 00:31:58,520
Speaker 5: the constitution? And should justices think about those practical consequences

553
00:31:58,640 --> 00:32:00,440
Speaker 5: when they're interpreting the words. Gast is.

554
00:32:02,120 --> 00:32:09,360
Speaker 3: Mainly no to both of those questions, because if you

555
00:32:09,440 --> 00:32:14,240
Speaker 3: do that, you know, with one exception I'll talk about later,

556
00:32:14,360 --> 00:32:16,400
Speaker 3: But if you do that, you're kind of putting yourself

557
00:32:16,440 --> 00:32:21,400
Speaker 3: in the place of the legislator. You can say, for example,

558
00:32:21,600 --> 00:32:28,200
Speaker 3: a consequence of the Second Amendment decisions are or more

559
00:32:28,200 --> 00:32:33,440
Speaker 3: people have guns and so there's more you know, accidental shootings,

560
00:32:33,480 --> 00:32:36,719
Speaker 3: more shootings. Or you can say the consequence is that

561
00:32:36,840 --> 00:32:39,200
Speaker 3: more people are armed and therefore they're in a better

562
00:32:39,240 --> 00:32:42,640
Speaker 3: position if there's for an invasion, as there was with

563
00:32:42,680 --> 00:32:45,280
Speaker 3: the bridge shortly after the adoption of the Second Amendment,

564
00:32:45,320 --> 00:32:47,920
Speaker 3: So that that's a good thing. Now, if you decide

565
00:32:47,920 --> 00:32:50,000
Speaker 3: one of those or the other based on your view

566
00:32:50,000 --> 00:32:52,440
Speaker 3: of what you think is best, you would be substituting

567
00:32:52,440 --> 00:32:54,200
Speaker 3: your own view for that of the people who wrote

568
00:32:54,640 --> 00:32:58,840
Speaker 3: the constitution. So no, I don't think that's not a

569
00:32:58,880 --> 00:33:01,800
Speaker 3: big part of at least how I do my job

570
00:33:01,840 --> 00:33:05,040
Speaker 3: sort of what a purpose of this approach is what

571
00:33:05,080 --> 00:33:09,240
Speaker 3: people would call that, because I think you're making yourself

572
00:33:09,600 --> 00:33:12,200
Speaker 3: the arbiter of what people were trying to accomplish in

573
00:33:12,240 --> 00:33:14,400
Speaker 3: that law. When you really need to be doing is

574
00:33:14,400 --> 00:33:17,080
Speaker 3: sitting down and reading it, you know, and its appropriate

575
00:33:17,120 --> 00:33:20,040
Speaker 3: context and trying to figure out what they what they meant.

576
00:33:20,440 --> 00:33:24,200
Speaker 3: Now one extreme, if an interpretation you adopt leads to

577
00:33:24,240 --> 00:33:28,240
Speaker 3: some absurd result that nobody could plausibly of intended, then yeah,

578
00:33:28,280 --> 00:33:32,400
Speaker 3: then the the the consequences make a difference. But I

579
00:33:32,440 --> 00:33:35,400
Speaker 3: think it's more important to figure out what the people

580
00:33:35,400 --> 00:33:39,520
Speaker 3: who wrote the law had in mind and what they

581
00:33:39,920 --> 00:33:43,560
Speaker 3: meant by the words they used, rather than think what

582
00:33:43,680 --> 00:33:47,720
Speaker 3: is this type of legislation for? Because then the you know,

583
00:33:47,800 --> 00:33:50,880
Speaker 3: the interpretation goes flips flip flops.

584
00:33:51,600 --> 00:33:56,080
Speaker 5: So the courthouse here in Buffalo is named for Robert Jackson,

585
00:33:56,720 --> 00:34:00,520
Speaker 5: and you clerked for Justice Renquist, right, Justicehrenk quiz clerk

586
00:34:00,600 --> 00:34:03,640
Speaker 5: for Justice Jackson, So you're sort of his grandson.

587
00:34:04,920 --> 00:34:05,280
Speaker 1: Sort of.

588
00:34:05,360 --> 00:34:09,319
Speaker 5: You know, well, yeah, do that have any special meaning

589
00:34:09,360 --> 00:34:11,480
Speaker 5: for you? I mean, I know one of the photos,

590
00:34:11,680 --> 00:34:15,200
Speaker 5: one of the portraits you have hanging, one of the

591
00:34:15,200 --> 00:34:19,440
Speaker 5: four portraits you have hanging in the the Justices conference

592
00:34:19,440 --> 00:34:21,759
Speaker 5: in the conference room is Jackson. Yeah, yeah, would you

593
00:34:21,760 --> 00:34:22,719
Speaker 5: talk about that a little bit?

594
00:34:22,800 --> 00:34:25,160
Speaker 3: Well, sure, I mean, obviously one of the more remarkable

595
00:34:25,719 --> 00:34:29,399
Speaker 3: members of the Court in our in our history. Part

596
00:34:29,400 --> 00:34:33,680
Speaker 3: of the reason they's in our conference room is he was,

597
00:34:34,239 --> 00:34:36,800
Speaker 3: you know, the solicitor General who argued before the Court,

598
00:34:36,840 --> 00:34:39,440
Speaker 3: the attorney General, you know, in charge of the branch

599
00:34:39,480 --> 00:34:43,960
Speaker 3: of justice and the administration, the prosecutor at Nuremberg, which

600
00:34:44,040 --> 00:34:46,640
Speaker 3: was very controversial on the Court. His colleagues did not

601
00:34:46,760 --> 00:34:52,440
Speaker 3: think that was necessarily something he should be should be doing. Uh.

602
00:34:52,560 --> 00:34:54,839
Speaker 3: And obviously one of the great justices. I mean, his

603
00:34:54,840 --> 00:35:00,240
Speaker 3: his eloquence is really extraordinary. His eloquence at Nuremberg was

604
00:35:00,239 --> 00:35:03,960
Speaker 3: was extraordinary. So yeah, I think it's a great grandfather

605
00:35:04,040 --> 00:35:10,120
Speaker 3: to have. Now the other the other portraits John Marshall

606
00:35:10,160 --> 00:35:16,080
Speaker 3: Harlan is there, and I just think somebody who's parents

607
00:35:16,239 --> 00:35:19,840
Speaker 3: name him John Marshall, who then lives up to it

608
00:35:19,880 --> 00:35:23,160
Speaker 3: and ends up on the Supreme Court, deserves an incredible painting.

609
00:35:23,280 --> 00:35:27,760
Speaker 3: And seriously, all his his pronouncements in number of areas

610
00:35:27,800 --> 00:35:30,200
Speaker 3: of the law I think are really remarkable.

611
00:35:30,239 --> 00:35:31,880
Speaker 5: He was at dissenter and plus he wasn't he.

612
00:35:32,680 --> 00:35:36,799
Speaker 4: Yes, Yeah, you're listening to Chief Justice John Roberts who

613
00:35:36,840 --> 00:35:41,000
Speaker 4: was having a conversation with Federal Judge Joseph Folardo. And

614
00:35:41,040 --> 00:35:42,720
Speaker 4: the topics are wide ranging.

615
00:35:43,040 --> 00:35:45,879
Speaker 3: I had five colleagues on the Court from New York,

616
00:35:46,520 --> 00:35:47,880
Speaker 3: so I figured I had to give him some New

617
00:35:47,960 --> 00:35:50,719
Speaker 3: Yorker on the law. And then of course the great

618
00:35:50,760 --> 00:35:52,600
Speaker 3: Chief John Marshall as well.

619
00:35:52,960 --> 00:35:57,040
Speaker 5: Yeah. So I read a speech that you gave to

620
00:35:57,120 --> 00:36:01,520
Speaker 5: your son's graduating class. It talked about the importance of

621
00:36:01,560 --> 00:36:04,160
Speaker 5: getting to know the folks who work at the school,

622
00:36:04,560 --> 00:36:08,279
Speaker 5: the custodial staff, the janitorial staff, those kinds of things.

623
00:36:08,719 --> 00:36:10,920
Speaker 5: Why is that important and why was it important enough

624
00:36:11,239 --> 00:36:13,839
Speaker 5: for you to give that message to your son and

625
00:36:13,880 --> 00:36:15,000
Speaker 5: his classmates.

626
00:36:16,120 --> 00:36:19,680
Speaker 3: Well, it was eighth grade, and it's a time when

627
00:36:19,680 --> 00:36:21,080
Speaker 3: they need to learn a lot of things.

628
00:36:22,920 --> 00:36:24,360
Speaker 1: And I mean it's.

629
00:36:24,239 --> 00:36:28,200
Speaker 3: Important just it's basic courtesy, but also it's important to

630
00:36:28,800 --> 00:36:33,919
Speaker 3: appreciate that, no matter high and mighty you might think

631
00:36:33,920 --> 00:36:36,640
Speaker 3: you are or others might that, there are other people

632
00:36:36,680 --> 00:36:38,839
Speaker 3: that are doing things that are just as vital to the.

633
00:36:40,360 --> 00:36:41,720
Speaker 1: You know, functioning of our.

634
00:36:43,120 --> 00:36:47,439
Speaker 3: World and as anybody else, and all the people who

635
00:36:47,480 --> 00:36:51,440
Speaker 3: work at the Supreme court are part of the process

636
00:36:51,520 --> 00:36:55,839
Speaker 3: that ends up in our articulation of what the law is,

637
00:36:56,120 --> 00:37:00,360
Speaker 3: and whether it's the Chief Justice or somebody in the

638
00:37:00,360 --> 00:37:03,880
Speaker 3: print shop or one of the law clerks or anybody else.

639
00:37:04,000 --> 00:37:07,000
Speaker 3: And I think if you lose sight of that, that's

640
00:37:07,040 --> 00:37:10,840
Speaker 3: a that's a real, real shame. And uh, you know,

641
00:37:10,920 --> 00:37:14,799
Speaker 3: I do think again, particularly eighth grade is a good

642
00:37:14,800 --> 00:37:15,640
Speaker 3: place to learn that way.

643
00:37:15,680 --> 00:37:17,239
Speaker 5: Did you do that when you were in school? Did

644
00:37:17,239 --> 00:37:18,920
Speaker 5: you did you get to know those folks when when

645
00:37:18,920 --> 00:37:19,399
Speaker 5: you were in.

646
00:37:19,400 --> 00:37:23,319
Speaker 3: Oh sure, yeah, yeah, but in eighth grade, I mean

647
00:37:23,920 --> 00:37:25,520
Speaker 3: you know those those people.

648
00:37:25,280 --> 00:37:29,200
Speaker 5: Were the boss. Yeah, that's exactly right, It's exactly right.

649
00:37:29,280 --> 00:37:29,440
Speaker 1: You know.

650
00:37:29,560 --> 00:37:33,239
Speaker 5: Sometimes I'll have folks who cleaning the office will come

651
00:37:33,280 --> 00:37:35,920
Speaker 5: in and apologize to me for coming in cleaning the office.

652
00:37:35,920 --> 00:37:37,920
Speaker 5: And I said, if you folks don't do this, I

653
00:37:37,960 --> 00:37:40,799
Speaker 5: can't do my job. So you know, it's as you say,

654
00:37:40,800 --> 00:37:41,200
Speaker 5: it's all.

655
00:37:41,160 --> 00:37:43,160
Speaker 1: Yeah, I apologize for making such a mess.

656
00:37:43,160 --> 00:37:51,600
Speaker 5: Which so you talked about a few minutes ago reading

657
00:37:52,080 --> 00:37:56,880
Speaker 5: petitions for curchary and briefs. What's the sort of criteria

658
00:37:56,960 --> 00:38:00,200
Speaker 5: that you use for deciding whether you want to take

659
00:38:00,239 --> 00:38:05,200
Speaker 5: a case job other than writing about red dogs. What

660
00:38:05,600 --> 00:38:06,359
Speaker 5: jumps out, are you.

661
00:38:06,680 --> 00:38:12,320
Speaker 3: Well, And it's pretty clear that it doesn't really matter

662
00:38:12,640 --> 00:38:14,919
Speaker 3: how right or wrong it is. I mean, the one

663
00:38:14,960 --> 00:38:16,840
Speaker 3: thing you could say in a certain petition that's not

664
00:38:16,880 --> 00:38:20,160
Speaker 3: a good idea is how horribly wrong this is. Because

665
00:38:20,200 --> 00:38:23,080
Speaker 3: the first message that comes across to us is that, well,

666
00:38:23,520 --> 00:38:26,080
Speaker 3: if it's that wrong, we don't have to worry about it.

667
00:38:26,120 --> 00:38:29,319
Speaker 3: They'll follow it. Mistake has been made. But one thing

668
00:38:29,320 --> 00:38:31,680
Speaker 3: that's certain, it's not our job. We're not a court

669
00:38:31,680 --> 00:38:35,440
Speaker 3: of error in the sense that we correct mistakes. So

670
00:38:36,040 --> 00:38:40,960
Speaker 3: what we're looking for are conflicting decisions on the same

671
00:38:41,200 --> 00:38:43,560
Speaker 3: law that have to be fixed. I mean, if one

672
00:38:43,600 --> 00:38:45,560
Speaker 3: person beds this law and says you can't do this,

673
00:38:45,680 --> 00:38:47,920
Speaker 3: and the other person says no, no, it means you

674
00:38:47,960 --> 00:38:51,040
Speaker 3: can't do this. It should mean the same thing across

675
00:38:51,080 --> 00:38:53,359
Speaker 3: the country. And so that's more the type of case

676
00:38:53,360 --> 00:38:58,759
Speaker 3: we would take to resolve that disagreement. So people want

677
00:38:58,800 --> 00:39:01,080
Speaker 3: to get their cases heard, need to have somebody who's

678
00:39:01,120 --> 00:39:05,440
Speaker 3: good at explaining why we need a greater degree of

679
00:39:05,520 --> 00:39:08,480
Speaker 3: uniformity this. You know, you can't say in New York

680
00:39:08,640 --> 00:39:12,000
Speaker 3: some particular expense is tax deductible, but in California it's not.

681
00:39:12,560 --> 00:39:14,400
Speaker 1: So a lot of the cases we get are actually

682
00:39:14,440 --> 00:39:15,880
Speaker 1: not that glamorous.

683
00:39:15,920 --> 00:39:17,560
Speaker 3: They're not that interesting because there are a lot of

684
00:39:17,600 --> 00:39:20,080
Speaker 3: areas of federal law, like you know, patent law and

685
00:39:20,120 --> 00:39:22,960
Speaker 3: copyright law, tax law, all sorts of things, and when

686
00:39:22,960 --> 00:39:25,319
Speaker 3: those disagreements come up, we're the only ones who can

687
00:39:25,400 --> 00:39:29,120
Speaker 3: fix it. So a lot of our docket is pretty mundane.

688
00:39:29,880 --> 00:39:33,319
Speaker 5: Is there something too, though? Putting something in the cert

689
00:39:33,400 --> 00:39:35,799
Speaker 5: petition that will catch the judges? I like the red

690
00:39:35,800 --> 00:39:40,080
Speaker 5: Dog story. I mean you find yourself when when you

691
00:39:40,120 --> 00:39:43,000
Speaker 5: read something like that that has something that catches your

692
00:39:43,040 --> 00:39:44,839
Speaker 5: eye drawn to it a little more.

693
00:39:45,120 --> 00:39:48,240
Speaker 1: Oh sure, yeah, I mean, you know, we take whatever

694
00:39:48,280 --> 00:39:48,520
Speaker 1: it is.

695
00:39:48,560 --> 00:39:49,880
Speaker 3: I don't know what the number is, one and a

696
00:39:49,920 --> 00:39:52,440
Speaker 3: half percent of all the curt petitions. You've got to

697
00:39:52,480 --> 00:39:55,839
Speaker 3: do something to stand out of the crowd, you know,

698
00:39:55,920 --> 00:39:59,520
Speaker 3: unless you have a really good case that may be

699
00:39:59,600 --> 00:40:02,200
Speaker 3: enough to ge at our attention. But other than that,

700
00:40:02,960 --> 00:40:04,799
Speaker 3: and it makes sense, you have to be a good

701
00:40:04,840 --> 00:40:08,120
Speaker 3: writer if you're there. I mean, obviously our law clerks

702
00:40:07,680 --> 00:40:11,400
Speaker 3: read somewhere all the petitions and they write summaries, but

703
00:40:11,440 --> 00:40:14,960
Speaker 3: we read from those summaries ones that we think, you know,

704
00:40:15,080 --> 00:40:18,439
Speaker 3: might be likely candidates and you know, it's very hard

705
00:40:18,480 --> 00:40:21,080
Speaker 3: to pick out the right ones.

706
00:40:22,160 --> 00:40:26,080
Speaker 5: Some of your colleagues have written autobiographies. Have you started

707
00:40:26,160 --> 00:40:26,680
Speaker 5: yours yet?

708
00:40:27,360 --> 00:40:27,440
Speaker 3: No?

709
00:40:27,920 --> 00:40:30,440
Speaker 5: Are you gonna? No? Why?

710
00:40:30,280 --> 00:40:30,400
Speaker 1: Why?

711
00:40:30,480 --> 00:40:30,799
Speaker 5: Why not?

712
00:40:31,880 --> 00:40:39,560
Speaker 3: I think my life is very interesting to be I'm

713
00:40:39,560 --> 00:40:43,560
Speaker 3: not sure it's terribly interesting to anyone else. And now

714
00:40:43,600 --> 00:40:48,280
Speaker 3: that's not true of some ofmic colleagues. Justice Thomas's autobiography

715
00:40:48,400 --> 00:40:51,040
Speaker 3: is absolutely gripping. If you haven't read it and are

716
00:40:51,040 --> 00:40:53,799
Speaker 3: at all interested in the court, you should. It's such

717
00:40:53,800 --> 00:40:58,719
Speaker 3: an extraordinary story. I really couldn't put it down. But

718
00:40:58,800 --> 00:41:02,120
Speaker 3: I don't think I don't think I have that.

719
00:41:03,520 --> 00:41:10,279
Speaker 5: That in me. Let's talk about your your role in

720
00:41:10,400 --> 00:41:16,720
Speaker 5: terms of you as a public figure. Obviously, you're very recognizable.

721
00:41:17,200 --> 00:41:20,080
Speaker 5: People know who you are. It's you have to be

722
00:41:20,160 --> 00:41:24,520
Speaker 5: on all the time, like now, uh, And how do

723
00:41:24,560 --> 00:41:26,840
Speaker 5: you separate that from your private life? How do you

724
00:41:26,960 --> 00:41:30,960
Speaker 5: how do you keep some privacy in your life and

725
00:41:31,160 --> 00:41:34,239
Speaker 5: have this kind of bigger than life role as Chief

726
00:41:34,400 --> 00:41:35,400
Speaker 5: Justice the United States?

727
00:41:35,440 --> 00:41:36,920
Speaker 1: Well recognizable.

728
00:41:38,040 --> 00:41:41,880
Speaker 3: My wife and I run vacation in Portugal last year

729
00:41:42,239 --> 00:41:44,640
Speaker 3: and another American sort of came up to us and

730
00:41:44,680 --> 00:41:46,600
Speaker 3: he's looked at me and says, I know.

731
00:41:46,640 --> 00:41:48,600
Speaker 1: You, I know who you are.

732
00:41:49,440 --> 00:41:55,360
Speaker 3: You're John Bahner, and so you know they were sitting

733
00:41:55,400 --> 00:41:58,080
Speaker 3: next I had to spend the whole evening pretending to

734
00:41:58,120 --> 00:42:03,759
Speaker 3: be John Bayner. So when you say readily recognizable, really not,

735
00:42:04,120 --> 00:42:09,720
Speaker 3: to be honest with you, it's getting worse though in general,

736
00:42:09,880 --> 00:42:12,840
Speaker 3: just because you know, the work of the court is

737
00:42:12,840 --> 00:42:14,960
Speaker 3: getting to a higher degree of publicity.

738
00:42:15,040 --> 00:42:18,680
Speaker 1: So it is a problem.

739
00:42:18,719 --> 00:42:22,000
Speaker 3: I will say ninety nine percent of the interactions I've

740
00:42:22,000 --> 00:42:23,919
Speaker 3: had with people, they come up and say hello, which

741
00:42:23,960 --> 00:42:27,480
Speaker 3: is fine, and so that's that's good. But we're not

742
00:42:27,520 --> 00:42:31,120
Speaker 3: as recognizable as you might think among a crowd of

743
00:42:31,200 --> 00:42:32,120
Speaker 3: judges and lawyers.

744
00:42:32,280 --> 00:42:32,759
Speaker 5: Yeah, but.

745
00:42:34,200 --> 00:42:36,840
Speaker 1: In the public at large, not much of them.

746
00:42:37,600 --> 00:42:41,160
Speaker 5: So some of your colleagues have retired. You ever think

747
00:42:41,200 --> 00:42:43,800
Speaker 5: about that. I mean, you're too young now, but some

748
00:42:44,040 --> 00:42:48,440
Speaker 5: day would you No? No, because you love because you

749
00:42:48,440 --> 00:42:49,239
Speaker 5: love what you do too much.

750
00:42:50,320 --> 00:42:52,720
Speaker 1: You know, I'm going out feet first.

751
00:42:53,080 --> 00:42:58,759
Speaker 3: It's just I am too good. Well, no, now I

752
00:42:58,800 --> 00:43:00,919
Speaker 3: say that now. I mean, I'm sure if your health

753
00:43:00,960 --> 00:43:03,719
Speaker 3: declines and all, and if you recognize that you're a

754
00:43:03,760 --> 00:43:08,520
Speaker 3: burden to the court rather than part of an assist

755
00:43:08,560 --> 00:43:11,799
Speaker 3: to everybody, then you know it'll be time to go.

756
00:43:12,160 --> 00:43:15,880
Speaker 1: I have very good friends that were.

757
00:43:17,800 --> 00:43:20,160
Speaker 3: For a long time, many years, and I've sat down

758
00:43:20,200 --> 00:43:23,160
Speaker 3: with them and you know, said, I want, you know,

759
00:43:23,239 --> 00:43:27,040
Speaker 3: appropriate time, because you don't always notice that you're slipping.

760
00:43:27,480 --> 00:43:29,239
Speaker 3: I want the you know, two of you to tell

761
00:43:29,239 --> 00:43:32,600
Speaker 3: me if it's it's time to go. It's a long pause,

762
00:43:32,680 --> 00:43:34,720
Speaker 3: and at once the two of them said it's.

763
00:43:34,600 --> 00:43:38,960
Speaker 1: Time to go. So I said, all right, never mind.

764
00:43:39,000 --> 00:43:41,120
Speaker 5: How funny I have that.

765
00:43:42,640 --> 00:43:44,040
Speaker 1: It is kind of she's going to tell me.

766
00:43:44,160 --> 00:43:49,040
Speaker 5: She hadn't said anything yet. Maybe after this she will.

767
00:43:50,040 --> 00:43:53,239
Speaker 3: It is surprising how rare it has been on the

768
00:43:53,320 --> 00:43:56,799
Speaker 3: court for that to become an issue. Really just a

769
00:43:56,840 --> 00:44:02,279
Speaker 3: handful of times. I think it's because it's a collegial

770
00:44:02,520 --> 00:44:05,840
Speaker 3: both in a technical sense and in a popular sense,

771
00:44:05,960 --> 00:44:10,520
Speaker 3: group of people that you develop relationships where if the

772
00:44:10,600 --> 00:44:13,319
Speaker 3: people do come, there have been times when somebody has

773
00:44:13,360 --> 00:44:15,080
Speaker 3: stayed a little longer than they should.

774
00:44:15,120 --> 00:44:17,400
Speaker 1: Then the other colleagues come and it's.

775
00:44:17,280 --> 00:44:21,640
Speaker 3: Always really worked out. So I don't think that's going

776
00:44:21,719 --> 00:44:24,400
Speaker 3: to be a problem.

777
00:44:25,000 --> 00:44:28,640
Speaker 1: But it is. Yeah, I mean, I still feel pretty healthy.

778
00:44:29,239 --> 00:44:31,040
Speaker 5: Do you love what you do? I mean, you really do.

779
00:44:31,239 --> 00:44:34,400
Speaker 3: It's exciting to get up, you know, every morning and

780
00:44:34,480 --> 00:44:35,120
Speaker 3: go into work.

781
00:44:35,200 --> 00:44:38,560
Speaker 5: It doesn't seem like work when it's like that, right some.

782
00:44:38,560 --> 00:44:44,760
Speaker 1: Days, some days it does. But it's nice that we have.

783
00:44:45,880 --> 00:44:50,960
Speaker 3: A break in the summer. Louis brandeis one of our

784
00:44:50,960 --> 00:44:54,480
Speaker 3: great justices, said that he could do the twelve months

785
00:44:54,520 --> 00:44:58,319
Speaker 3: worth of work in ten months, but he couldn't do

786
00:44:58,360 --> 00:45:01,680
Speaker 3: it in twelve months. And I think there's a lot

787
00:45:01,719 --> 00:45:04,120
Speaker 3: of wisdom in that we work at very close quarters

788
00:45:04,200 --> 00:45:08,799
Speaker 3: on very important issues, on very sensitive issues at work.

789
00:45:08,840 --> 00:45:12,279
Speaker 1: That is is hard to do, and.

790
00:45:12,200 --> 00:45:15,400
Speaker 3: We do need a little break from each other, but

791
00:45:15,480 --> 00:45:19,040
Speaker 3: it does. It's interesting, it really is creates such a

792
00:45:19,080 --> 00:45:22,160
Speaker 3: strong bond. I'm sure people, you know, listening to the

793
00:45:22,200 --> 00:45:25,680
Speaker 3: news or reading our decisions, particularly you know, decisions that

794
00:45:25,719 --> 00:45:28,520
Speaker 3: come out in May and June, maybe think, boy, those

795
00:45:28,560 --> 00:45:31,000
Speaker 3: people really must, you know, hate each other. They must

796
00:45:31,040 --> 00:45:35,480
Speaker 3: be at hammer and tong the whole time, and we don't.

797
00:45:35,719 --> 00:45:38,960
Speaker 3: I mean, the dealing with the type of cases we

798
00:45:39,040 --> 00:45:43,760
Speaker 3: do and their significance, it's something only those nine people

799
00:45:43,840 --> 00:45:46,920
Speaker 3: can can know. Whether you take something as basic and

800
00:45:47,000 --> 00:45:52,279
Speaker 3: fundamental as whether somebody lives or dies you share that

801
00:45:52,600 --> 00:45:56,000
Speaker 3: in a very intimate way, or whether whatever else that

802
00:45:56,160 --> 00:45:59,760
Speaker 3: is the most important issue facing the public, and even

803
00:45:59,800 --> 00:46:03,359
Speaker 3: if you are on opposite sides more often than not,

804
00:46:04,040 --> 00:46:07,040
Speaker 3: and we're not most of more of our decisions are

805
00:46:07,160 --> 00:46:11,759
Speaker 3: unanimous than anything else people lose lose sight of. But

806
00:46:12,680 --> 00:46:14,680
Speaker 3: it is a strong, a strong bond.

807
00:46:15,280 --> 00:46:20,040
Speaker 5: I think when Justice Skinsburg and Justice Scalia were on

808
00:46:20,120 --> 00:46:24,920
Speaker 5: the court together and their friendship got some publicity, I

809
00:46:24,960 --> 00:46:27,920
Speaker 5: think people got to understand that a little bit more

810
00:46:28,280 --> 00:46:32,600
Speaker 5: because RBG was taught publicly about it a lot, and

811
00:46:32,760 --> 00:46:36,200
Speaker 5: and just how fond she was of Justice Scalia and

812
00:46:36,280 --> 00:46:39,040
Speaker 5: vice versa, even though they were at opposite ends of

813
00:46:39,160 --> 00:46:40,239
Speaker 5: lots of decisions.

814
00:46:40,360 --> 00:46:43,160
Speaker 3: Yeah, and a lot goes into that. And you know,

815
00:46:43,200 --> 00:46:46,160
Speaker 3: you have more in common with some colleagues than others. Sure,

816
00:46:46,320 --> 00:46:48,320
Speaker 3: so I do things with some of my colleagues that

817
00:46:48,360 --> 00:46:50,640
Speaker 3: I don't with the other and vice versa.

818
00:46:52,080 --> 00:46:54,080
Speaker 1: But it is, it is a bond.

819
00:46:53,880 --> 00:46:57,120
Speaker 3: And you know, and their their issues and discussions you

820
00:46:57,160 --> 00:47:00,640
Speaker 3: don't I don't share with with with my wife, and

821
00:47:00,680 --> 00:47:03,920
Speaker 3: I know others don't just because they find it easier

822
00:47:03,920 --> 00:47:05,840
Speaker 3: not to know, you know, in terms of that, so

823
00:47:05,880 --> 00:47:08,840
Speaker 3: they don't have to worry about it. But so it

824
00:47:08,960 --> 00:47:13,840
Speaker 3: is a it's a small group. The bonds of real

825
00:47:13,920 --> 00:47:20,080
Speaker 3: affection and friendship and shared experience are very very strong,

826
00:47:20,360 --> 00:47:24,040
Speaker 3: and I think we try very hard not to let

827
00:47:24,360 --> 00:47:26,759
Speaker 3: disagreements of the moment break that.

828
00:47:27,920 --> 00:47:30,960
Speaker 5: So you've been on the court for twenty years, Yeah,

829
00:47:31,360 --> 00:47:33,759
Speaker 5: and you were a circuit judge for a couple of

830
00:47:33,800 --> 00:47:37,080
Speaker 5: years before that. Read a lot of district district court

831
00:47:37,120 --> 00:47:41,840
Speaker 5: decisions over the years, So I'm looking for a little advice. Now,

832
00:47:41,960 --> 00:47:45,440
Speaker 5: what what what? What can you tell district judges about

833
00:47:45,800 --> 00:47:49,359
Speaker 5: the decisions they write that might might help us?

834
00:47:49,719 --> 00:47:54,320
Speaker 1: Yeah, brevity is good.

835
00:47:56,200 --> 00:48:03,240
Speaker 6: And I think it's it's you knowing to this, particularly

836
00:48:03,280 --> 00:48:04,000
Speaker 6: with the district court.

837
00:48:04,080 --> 00:48:07,640
Speaker 3: We recognize there was a primary responsibility of the district

838
00:48:07,680 --> 00:48:10,839
Speaker 3: courts to deal with the facts, and we don't want

839
00:48:10,920 --> 00:48:12,800
Speaker 3: to be second guessing the facts.

840
00:48:13,400 --> 00:48:15,280
Speaker 1: And so that's.

841
00:48:15,160 --> 00:48:17,239
Speaker 3: An important thing to address if it's going to be

842
00:48:17,239 --> 00:48:20,200
Speaker 3: in the opinion, to make it clear what findings you've

843
00:48:20,200 --> 00:48:21,240
Speaker 3: made about what.

844
00:48:21,160 --> 00:48:23,840
Speaker 1: And and and and and and what hasn't.

845
00:48:25,640 --> 00:48:30,640
Speaker 3: And then I remember Justice Renquist, for whom my clerk

846
00:48:30,760 --> 00:48:32,880
Speaker 3: was very adamant about that he was a very.

847
00:48:32,719 --> 00:48:36,480
Speaker 1: Good trial lawyer. He said, you don't want to waste

848
00:48:37,239 --> 00:48:38,520
Speaker 1: too much time, you.

849
00:48:38,480 --> 00:48:43,480
Speaker 3: Know, on on the law if you're the facts are

850
00:48:43,520 --> 00:48:46,080
Speaker 3: more important than the law, and then you know, the

851
00:48:46,560 --> 00:48:48,759
Speaker 3: as it moves up, people are focused more on the

852
00:48:49,640 --> 00:48:53,160
Speaker 3: on the facts he tried. When he was in my

853
00:48:53,280 --> 00:48:56,360
Speaker 3: position as chief Justice, he was remembering his days fondly

854
00:48:56,480 --> 00:49:00,160
Speaker 3: as a trial lawyer, and he assigned himself to a

855
00:49:00,200 --> 00:49:07,040
Speaker 3: district court in Virginia to hear a trial, just to

856
00:49:07,160 --> 00:49:09,600
Speaker 3: kind of get back on the saddle in that way,

857
00:49:09,600 --> 00:49:12,240
Speaker 3: and souf and he did, and it was he issued

858
00:49:12,239 --> 00:49:16,399
Speaker 3: a decision, and they appealed, and the Fourth Circuit reversed him.

859
00:49:16,880 --> 00:49:17,480
Speaker 1: Is that right?

860
00:49:18,920 --> 00:49:19,960
Speaker 5: And he never did it again.

861
00:49:20,880 --> 00:49:21,080
Speaker 1: No.

862
00:49:21,320 --> 00:49:24,200
Speaker 3: But the only thing that made him mad, and he

863
00:49:24,360 --> 00:49:26,680
Speaker 3: was really upset about it is that they issued it

864
00:49:26,719 --> 00:49:30,440
Speaker 3: as a percurate on opinion. Nobody had the guts to

865
00:49:30,440 --> 00:49:31,319
Speaker 3: put their name on it.

866
00:49:33,560 --> 00:49:35,120
Speaker 5: You ever think about doing that, trying to be a

867
00:49:35,160 --> 00:49:38,400
Speaker 5: trigiant No, because well you didn't try cases, so no

868
00:49:38,760 --> 00:49:43,200
Speaker 5: difference there. Yeah. So you became chief Justice in two

869
00:49:43,239 --> 00:49:47,879
Speaker 5: thousand and five, you worked with Justice o'cannor, and then yeah,

870
00:49:48,040 --> 00:49:51,520
Speaker 5: Justice Skinsburg, and now there are more women on the

871
00:49:51,560 --> 00:49:55,520
Speaker 5: court than ever. Has that changed the dynamic or the

872
00:49:55,560 --> 00:49:57,680
Speaker 5: culture of the court in any way.

873
00:50:00,200 --> 00:50:03,040
Speaker 1: No, It'll be my honest answer, I don't think it has.

874
00:50:03,200 --> 00:50:06,680
Speaker 3: I'm sure, when Justice O'Connor came on as the first woman,

875
00:50:07,280 --> 00:50:09,680
Speaker 3: that had all sorts of consequences.

876
00:50:08,920 --> 00:50:10,080
Speaker 1: And changes, and.

877
00:50:12,239 --> 00:50:14,439
Speaker 3: But you know, now, to be honest, I don't think

878
00:50:15,239 --> 00:50:18,319
Speaker 3: in terms of the dynamic at conference or the discussions

879
00:50:18,400 --> 00:50:23,360
Speaker 3: and all that, I just don't think it makes a difference.

880
00:50:23,400 --> 00:50:26,720
Speaker 3: I wouldn't say that our conferences or our discussions are different,

881
00:50:26,800 --> 00:50:31,400
Speaker 3: because I would say it's different because those particular individuals

882
00:50:31,440 --> 00:50:35,200
Speaker 3: are there and they all come and bring different perspectives

883
00:50:35,200 --> 00:50:37,080
Speaker 3: and all. But I don't think I would say it's

884
00:50:37,200 --> 00:50:39,560
Speaker 3: different than because they're women.

885
00:50:41,320 --> 00:50:46,120
Speaker 5: So there's been a lot of criticism of some decisions

886
00:50:46,280 --> 00:50:51,960
Speaker 5: because they have not they've changed precedent, right the abortion

887
00:50:52,080 --> 00:50:56,600
Speaker 5: decision most recently, in other decisions like that, But that

888
00:50:56,680 --> 00:50:59,279
Speaker 5: happens all the time, right, I mean, there's lots of

889
00:50:59,360 --> 00:51:05,279
Speaker 5: times when courts have precedent that they that they think

890
00:51:05,360 --> 00:51:07,840
Speaker 5: needs to be changed for whatever reason. What kind of

891
00:51:07,840 --> 00:51:09,800
Speaker 5: criteria do you apply to that yourself?

892
00:51:11,120 --> 00:51:15,480
Speaker 3: Well, first of all, there's a lot of misconception on

893
00:51:15,560 --> 00:51:21,919
Speaker 3: that subject. The see if I make sure I get

894
00:51:21,920 --> 00:51:25,280
Speaker 3: these numbers right, in recent study, the war in court

895
00:51:25,560 --> 00:51:31,280
Speaker 3: overruled I think three three point two decisions on average.

896
00:51:31,360 --> 00:51:33,759
Speaker 5: You know a year the.

897
00:51:33,719 --> 00:51:35,880
Speaker 3: Burger Court actually had a little bit more than I

898
00:51:35,880 --> 00:51:41,440
Speaker 3: think they did, three point six percent a year. The

899
00:51:41,520 --> 00:51:44,759
Speaker 3: rank was court moved down a little bit, only two

900
00:51:44,840 --> 00:51:50,400
Speaker 3: point four cases number percent cases a year, and in

901
00:51:50,440 --> 00:51:54,279
Speaker 3: the past twenty years the number has been one point six.

902
00:51:55,280 --> 00:52:00,080
Speaker 3: So people have a different, at somewhat wrong view of

903
00:52:00,120 --> 00:52:03,560
Speaker 3: how many cases are being overturned now. We take fewer

904
00:52:03,640 --> 00:52:06,360
Speaker 3: cases now than they did before, but the number of

905
00:52:06,400 --> 00:52:09,640
Speaker 3: important ones that would be subject to overruling are the same.

906
00:52:09,719 --> 00:52:13,520
Speaker 1: So a lot of people talk as if we're overruling

907
00:52:13,520 --> 00:52:14,080
Speaker 1: a lot more.

908
00:52:14,160 --> 00:52:20,160
Speaker 3: It's the lowest it's been since the fifties, and sort of,

909
00:52:20,520 --> 00:52:22,600
Speaker 3: and some cases should be.

910
00:52:23,160 --> 00:52:25,799
Speaker 1: I mean, aren't you glad that you know Brown versus.

911
00:52:25,520 --> 00:52:30,280
Speaker 3: Board of Education overruled Plessy or that Cats overruled Olmsted.

912
00:52:30,360 --> 00:52:33,360
Speaker 3: So the idea that it's invariably a bad thing to

913
00:52:33,480 --> 00:52:38,919
Speaker 3: overrule precedent is I think quite mistaken. At the same time,

914
00:52:39,280 --> 00:52:42,080
Speaker 3: you can't do it willy nilly just because you know,

915
00:52:42,120 --> 00:52:44,040
Speaker 3: you look at a case and you think, gosh, I

916
00:52:44,080 --> 00:52:47,280
Speaker 3: would have had that principle come out.

917
00:52:47,080 --> 00:52:50,120
Speaker 1: The other way. That doesn't mean you overturn it.

918
00:52:50,200 --> 00:52:54,080
Speaker 3: Starry decisive is an important part of our work. The

919
00:52:54,160 --> 00:52:57,520
Speaker 3: law is supposed to be predictable, so you need a

920
00:52:57,520 --> 00:53:00,960
Speaker 3: special justification before you want to overrule a case.

921
00:53:01,040 --> 00:53:03,759
Speaker 1: Other than that you just happen to think, I think

922
00:53:03,800 --> 00:53:04,240
Speaker 1: it's wrong.

923
00:53:04,560 --> 00:53:07,560
Speaker 5: We were talking about the Barnett case a little while ago,

924
00:53:07,719 --> 00:53:11,960
Speaker 5: and that was a case that overruled a decision Justice

925
00:53:11,960 --> 00:53:14,120
Speaker 5: frankfurt Or made just a few years before go bite

926
00:53:14,160 --> 00:53:17,440
Speaker 5: this or whatever. Yeah, and so yeah, it's been around

927
00:53:17,480 --> 00:53:19,000
Speaker 5: for a long time.

928
00:53:19,440 --> 00:53:21,400
Speaker 3: Yeah, So when you do that, you have to the

929
00:53:21,440 --> 00:53:25,400
Speaker 3: first thing has to be that it's clearly wrong. The

930
00:53:25,440 --> 00:53:28,680
Speaker 3: second thing has to be does that make a difference.

931
00:53:28,760 --> 00:53:30,959
Speaker 3: I mean, if, for example, you say you can't figure

932
00:53:30,960 --> 00:53:33,520
Speaker 3: out what the filing deadline is, you know, is it

933
00:53:33,560 --> 00:53:35,720
Speaker 3: ten days under the rule or is it twelve days?

934
00:53:36,520 --> 00:53:37,440
Speaker 1: You have to decide it.

935
00:53:37,880 --> 00:53:40,960
Speaker 3: But you shouldn't come back and say, oh, it should

936
00:53:40,960 --> 00:53:42,800
Speaker 3: have been twelve days, not ten days.

937
00:53:42,800 --> 00:53:43,880
Speaker 1: So we're going to overrule that.

938
00:53:43,960 --> 00:53:47,000
Speaker 3: I mean, that's something that most cases, many cases, it's

939
00:53:47,040 --> 00:53:49,120
Speaker 3: more important that they be decided than that to be

940
00:53:49,160 --> 00:53:51,960
Speaker 3: decided right, whether it's ten or twelve days, is a

941
00:53:52,000 --> 00:53:53,520
Speaker 3: case like that. So it has to be a case

942
00:53:53,520 --> 00:53:58,080
Speaker 3: where it really makes an important ongoing difference. And be

943
00:53:58,440 --> 00:54:02,400
Speaker 3: significant enough to the league system that it justified to

944
00:54:02,440 --> 00:54:05,880
Speaker 3: overturn the approach. But it's not something you want to

945
00:54:05,920 --> 00:54:06,640
Speaker 3: do very often.

946
00:54:07,160 --> 00:54:09,480
Speaker 5: Can you talk a little bit about your experience clerking

947
00:54:09,600 --> 00:54:13,040
Speaker 5: for Judge Friendly and Justice Ranquist.

948
00:54:14,000 --> 00:54:18,840
Speaker 3: Yeah, two wonderful years in my life and two totally

949
00:54:18,840 --> 00:54:23,120
Speaker 3: different experiences. And I have to say, at a very

950
00:54:23,120 --> 00:54:25,719
Speaker 3: personal level, the chance to clerk with Judge Friendly was

951
00:54:25,800 --> 00:54:30,279
Speaker 3: very important. I graduated from law school in nineteen seventy nine,

952
00:54:30,600 --> 00:54:33,319
Speaker 3: and this may be just the way I looked at it,

953
00:54:33,360 --> 00:54:38,000
Speaker 3: but maybe it was because I you know, you know,

954
00:54:38,040 --> 00:54:42,000
Speaker 3: being a lawyer was a second choice for me in general.

955
00:54:43,760 --> 00:54:48,640
Speaker 3: But the law was a very cynical enterprise back then,

956
00:54:48,760 --> 00:54:51,239
Speaker 3: I think, and you know, in some ways it's good.

957
00:54:51,320 --> 00:54:56,560
Speaker 1: In other facts, it was very instrumental.

958
00:54:57,160 --> 00:54:59,640
Speaker 3: People were using law as kind of a vehicle to

959
00:54:59,680 --> 00:55:02,400
Speaker 3: achieve a particular objective, which there's nothing wrong with that

960
00:55:02,480 --> 00:55:05,319
Speaker 3: at all. That's a lot of people, you know, do that,

961
00:55:05,880 --> 00:55:08,880
Speaker 3: but also in a cynical way, and law was not

962
00:55:09,040 --> 00:55:17,279
Speaker 3: regarded as something of sort of moral value from one

963
00:55:17,320 --> 00:55:20,440
Speaker 3: of another word. And so I felt frankly that maybe

964
00:55:20,440 --> 00:55:22,960
Speaker 3: this had not been a good choice. This wasn't something

965
00:55:23,040 --> 00:55:27,560
Speaker 3: that was uplifting. If you had a particular agenda you

966
00:55:27,560 --> 00:55:29,600
Speaker 3: wanted to pursue it good it could help.

967
00:55:29,480 --> 00:55:31,840
Speaker 1: You do that. But then I went and you know,

968
00:55:32,000 --> 00:55:33,160
Speaker 1: was at the elbow.

969
00:55:32,840 --> 00:55:37,200
Speaker 3: Of this extraordinarily great man, one of the most remarkable judges,

970
00:55:37,440 --> 00:55:41,719
Speaker 3: and he saw it differently. He really looked at it

971
00:55:41,800 --> 00:55:49,120
Speaker 3: as a valuable gift that we had inherited for ordering

972
00:55:49,160 --> 00:55:52,520
Speaker 3: society in a reasonable way. And he was somebody who

973
00:55:52,560 --> 00:55:58,040
Speaker 3: was totally a political the most brilliant judge of his generation,

974
00:55:59,520 --> 00:56:02,439
Speaker 3: Richard and didn't appoint him to the Supreme Court because

975
00:56:02,440 --> 00:56:05,400
Speaker 3: he thought he would be soft on crime, and he

976
00:56:05,440 --> 00:56:07,880
Speaker 3: would have been from Nixon's perspective. He would have applied

977
00:56:07,880 --> 00:56:11,000
Speaker 3: the law as it should be and meant some criminals

978
00:56:11,000 --> 00:56:15,839
Speaker 3: were going to go free and others worked. But and

979
00:56:15,960 --> 00:56:19,360
Speaker 3: he was able to sort of construct certainly in his opinions,

980
00:56:19,400 --> 00:56:25,640
Speaker 3: which lawyers here know were remarkable. Realized that this was

981
00:56:25,680 --> 00:56:29,680
Speaker 3: a system that had internal coherence and that was really

982
00:56:29,719 --> 00:56:33,319
Speaker 3: a gift, and it needed people who are willing to

983
00:56:33,400 --> 00:56:35,359
Speaker 3: view it in those terms rather than this is how

984
00:56:35,400 --> 00:56:38,400
Speaker 3: I'm going to use it to get to a particular result.

985
00:56:38,480 --> 00:56:40,480
Speaker 3: So that was where I kind of I left my

986
00:56:40,800 --> 00:56:46,000
Speaker 3: cynicism about the work that we as lawyers and judges

987
00:56:46,080 --> 00:56:50,600
Speaker 3: do and appreciated that it had a greater worth, and

988
00:56:50,800 --> 00:56:54,600
Speaker 3: just in terms of writing was it was a remarkable

989
00:56:54,680 --> 00:56:57,359
Speaker 3: gifted writer. He would come off of the bench after

990
00:56:57,480 --> 00:57:00,680
Speaker 3: argument and sit down with legal pasth I had two

991
00:57:00,760 --> 00:57:04,040
Speaker 3: of them, one for text, one for footnotes or notes,

992
00:57:04,080 --> 00:57:07,759
Speaker 3: and just start writing and finish it one day or

993
00:57:07,760 --> 00:57:10,279
Speaker 3: two days, and the secretary would type it up and

994
00:57:10,320 --> 00:57:12,239
Speaker 3: give it to one of his law clerks and we'd

995
00:57:12,320 --> 00:57:14,000
Speaker 3: look at it and say, well, what.

996
00:57:13,920 --> 00:57:14,799
Speaker 1: Does he want us to do?

997
00:57:15,920 --> 00:57:18,200
Speaker 3: And he would have some ideas and look at it.

998
00:57:18,240 --> 00:57:22,360
Speaker 3: So that was a really remarkable year. And then with Ranquist,

999
00:57:22,440 --> 00:57:27,000
Speaker 3: it was no. Renquist was the generation between Friendly was

1000
00:57:27,040 --> 00:57:30,160
Speaker 3: kind of like almost like two generations. Who's older and

1001
00:57:30,200 --> 00:57:32,200
Speaker 3: I was just out of law school and Ranquist was

1002
00:57:32,280 --> 00:57:34,959
Speaker 3: kind of right in the middle, and.

1003
00:57:36,440 --> 00:57:37,280
Speaker 1: A different approach.

1004
00:57:37,360 --> 00:57:45,360
Speaker 3: His writing is crystal clear, very direct, and had the

1005
00:57:45,400 --> 00:57:51,040
Speaker 3: same sort of appreciation and I don't mean to overuse

1006
00:57:51,120 --> 00:57:53,920
Speaker 3: these sorts of words with reverence for what the law does,

1007
00:57:54,480 --> 00:57:57,680
Speaker 3: but was very you know, direct and analytic, and you

1008
00:57:58,040 --> 00:58:00,880
Speaker 3: sort of knew exactly how it was structured and where

1009
00:58:00,880 --> 00:58:03,080
Speaker 3: it was going. So it was a nice experience for

1010
00:58:03,120 --> 00:58:05,880
Speaker 3: me to have two very different people and they really

1011
00:58:06,440 --> 00:58:11,360
Speaker 3: admired each other. They In fact, I got the clerkship

1012
00:58:11,400 --> 00:58:14,560
Speaker 3: with Renquist because he and Friendly were at a conference

1013
00:58:14,600 --> 00:58:20,440
Speaker 3: together and I think, you know, Justice Renquist asked Judge

1014
00:58:20,440 --> 00:58:23,520
Speaker 3: Friendly if he had any good law clerks and he

1015
00:58:24,000 --> 00:58:26,280
Speaker 3: mentioned one, and I guess somebody else.

1016
00:58:26,120 --> 00:58:27,680
Speaker 1: Hired that one and they mentioned.

1017
00:58:29,960 --> 00:58:33,560
Speaker 3: And so anyway, I don't mean to be long winded

1018
00:58:33,600 --> 00:58:37,080
Speaker 3: about it, but you do kind of look back at

1019
00:58:37,120 --> 00:58:40,520
Speaker 3: that and see these sort of formative influences in your

1020
00:58:40,600 --> 00:58:43,560
Speaker 3: in your life and are grateful for them.

1021
00:58:44,320 --> 00:58:47,960
Speaker 5: Does the way you deal with your clerks by and

1022
00:58:48,120 --> 00:58:52,280
Speaker 5: large mirror the way they dealt with you?

1023
00:58:52,320 --> 00:58:54,240
Speaker 1: No, No, I wouldn't say that.

1024
00:58:55,800 --> 00:58:56,000
Speaker 5: One.

1025
00:58:56,560 --> 00:58:57,760
Speaker 1: When you're in the middle of it.

1026
00:58:57,640 --> 00:59:00,480
Speaker 3: It's kind of hard to be self conscious and appreciate it.

1027
00:59:00,520 --> 00:59:01,040
Speaker 1: I mean, I don't.

1028
00:59:02,520 --> 00:59:05,160
Speaker 3: The one thing I do know is that the four

1029
00:59:05,280 --> 00:59:09,600
Speaker 3: clerks really do form quite a common bond. And rnquists

1030
00:59:09,640 --> 00:59:12,000
Speaker 3: used to talk to us about how that was, and

1031
00:59:12,040 --> 00:59:14,440
Speaker 3: he said, it's because the clerks are united by a

1032
00:59:14,440 --> 00:59:20,840
Speaker 3: common enemy and so and I really it's kind of

1033
00:59:20,880 --> 00:59:22,560
Speaker 3: hard when you're in the middle of it to see

1034
00:59:22,560 --> 00:59:26,040
Speaker 3: how you know, they might view the experience.

1035
00:59:26,440 --> 00:59:27,640
Speaker 5: How do you work with your clerks.

1036
00:59:28,560 --> 00:59:30,520
Speaker 1: It really varies from case to case. You know.

1037
00:59:32,200 --> 00:59:36,520
Speaker 3: Sometimes if the facts are a little complicated, I'll want

1038
00:59:36,520 --> 00:59:38,320
Speaker 3: them to take a look at the record more than

1039
00:59:38,360 --> 00:59:43,560
Speaker 3: they might otherwise. Sometimes, if I feel comfortable that I

1040
00:59:43,640 --> 00:59:48,320
Speaker 3: know the law in an area, I'll have them do that.

1041
00:59:49,120 --> 00:59:50,400
Speaker 1: But I would go in.

1042
00:59:50,360 --> 00:59:53,680
Speaker 3: Much more carefully because I'm probably wrong about it. I

1043
00:59:53,720 --> 00:59:56,840
Speaker 3: want to make sure that I'm not letting errors that

1044
00:59:56,920 --> 01:00:00,600
Speaker 3: might have crept in affect my mind standing.

1045
01:00:01,320 --> 01:00:02,520
Speaker 1: And then we'll go back and forth.

1046
01:00:02,600 --> 01:00:05,000
Speaker 3: Sometimes I'll draft something and they'll look at it and

1047
01:00:05,600 --> 01:00:08,680
Speaker 3: they don't have the problem I had with Judge Friendly there.

1048
01:00:08,960 --> 01:00:10,800
Speaker 1: It's come back pretty extensive.

1049
01:00:10,880 --> 01:00:13,840
Speaker 5: Sometimes I'll encourage that, right, I mean, I'm sure you

1050
01:00:14,400 --> 01:00:15,040
Speaker 5: ask them.

1051
01:00:14,920 --> 01:00:16,880
Speaker 1: Well, what's the point otherwise?

1052
01:00:16,960 --> 01:00:17,960
Speaker 5: Right? Exactly how?

1053
01:00:18,920 --> 01:00:20,800
Speaker 3: And sometimes I'll want to look at the facts a

1054
01:00:20,840 --> 01:00:24,920
Speaker 3: little bit more. But then when we get closer to

1055
01:00:24,960 --> 01:00:27,720
Speaker 3: the end, I have all four of them sit down

1056
01:00:27,720 --> 01:00:31,800
Speaker 3: together and we all go over the draft of the opinions.

1057
01:00:31,840 --> 01:00:34,400
Speaker 3: So you have somebody who's sort of been looking at

1058
01:00:34,440 --> 01:00:37,800
Speaker 3: it very carefully. Hopefully I'm one of those people too,

1059
01:00:37,840 --> 01:00:39,720
Speaker 3: And then the others who have just kind of like

1060
01:00:39,800 --> 01:00:41,880
Speaker 3: read it. So in a way, it's like, you know,

1061
01:00:42,400 --> 01:00:44,600
Speaker 3: when I talked about doing briefs, you want to make

1062
01:00:44,640 --> 01:00:46,960
Speaker 3: sure that someone sort of putting eyes on it for

1063
01:00:47,000 --> 01:00:48,800
Speaker 3: the first time, can really figure out.

1064
01:00:48,720 --> 01:00:50,960
Speaker 5: What it's How do you decide which clerk works on

1065
01:00:51,000 --> 01:00:51,439
Speaker 5: which case.

1066
01:00:51,480 --> 01:00:52,800
Speaker 1: I leave that entirely up to them.

1067
01:00:52,920 --> 01:00:54,000
Speaker 5: They make close decisions.

1068
01:00:54,040 --> 01:00:57,160
Speaker 4: Yeah, you're listening to Chief Justice John Roberts in a

1069
01:00:57,200 --> 01:01:01,480
Speaker 4: fireside chat in Buffalo, New York with Joseph Belardo. Is

1070
01:01:01,560 --> 01:01:04,480
Speaker 4: still part of the celebration of the one hundred and

1071
01:01:04,520 --> 01:01:07,120
Speaker 4: twenty five years of the Western District.

1072
01:01:06,720 --> 01:01:09,520
Speaker 3: Of New York that the system is developed where we

1073
01:01:09,600 --> 01:01:12,720
Speaker 3: get these very very bright people to work very very

1074
01:01:12,720 --> 01:01:18,240
Speaker 3: hard and they come up with such great work products.

1075
01:01:18,560 --> 01:01:22,160
Speaker 5: And when you hire clerks, have they generally clerked for

1076
01:01:22,400 --> 01:01:26,040
Speaker 5: a district judge or a circuit judge? First? Oh? Sure? Always?

1077
01:01:26,160 --> 01:01:26,520
Speaker 1: Always?

1078
01:01:26,680 --> 01:01:29,760
Speaker 5: Yeah, So unlike Justice White, who that was kind of

1079
01:01:29,760 --> 01:01:33,640
Speaker 5: the fading out of that experience, I think, And you know.

1080
01:01:33,640 --> 01:01:36,520
Speaker 1: You want to get the view of a judge who's.

1081
01:01:36,320 --> 01:01:39,320
Speaker 3: Been with them for a year, I think, because that

1082
01:01:39,400 --> 01:01:42,760
Speaker 3: helps a lot.

1083
01:01:42,120 --> 01:01:43,600
Speaker 5: In one year clerkships.

1084
01:01:44,240 --> 01:01:47,840
Speaker 3: Absolutely, you don't want them to get too good. I

1085
01:01:47,880 --> 01:01:50,200
Speaker 3: mean that's the case now very seriously. I mean, you

1086
01:01:50,240 --> 01:01:52,280
Speaker 3: don't want them to get too good at what you're

1087
01:01:52,320 --> 01:01:53,040
Speaker 3: supposed to do.

1088
01:01:53,360 --> 01:01:55,000
Speaker 1: You want to make sure that you are the one

1089
01:01:55,880 --> 01:01:56,480
Speaker 1: doing the work.

1090
01:01:56,560 --> 01:01:59,000
Speaker 3: Yes, they're going to help you on what the cases

1091
01:01:59,040 --> 01:02:02,040
Speaker 3: say about this or how the facts look on this issue,

1092
01:02:02,360 --> 01:02:06,000
Speaker 3: but you don't want them to get too good because because.

1093
01:02:05,720 --> 01:02:08,560
Speaker 5: You think there's a danger of you using them as

1094
01:02:08,560 --> 01:02:09,439
Speaker 5: a crutch too much.

1095
01:02:09,920 --> 01:02:12,680
Speaker 3: Yeah, you want to make sure that issue doesn't really

1096
01:02:12,720 --> 01:02:18,360
Speaker 3: come up now. So and also it's a real valuable

1097
01:02:18,400 --> 01:02:21,280
Speaker 3: thing for me and I know other justices to have

1098
01:02:21,360 --> 01:02:24,320
Speaker 3: these sorts of to be a little more attuned to

1099
01:02:24,360 --> 01:02:28,280
Speaker 3: what's going on in the law schools. And you know,

1100
01:02:28,320 --> 01:02:31,880
Speaker 3: having a fresh batch every year you learn more about

1101
01:02:31,960 --> 01:02:35,360
Speaker 3: you know, what the teachers are teaching and what the

1102
01:02:35,360 --> 01:02:36,560
Speaker 3: students are interested in.

1103
01:02:36,640 --> 01:02:37,520
Speaker 1: And then they go out.

1104
01:02:37,560 --> 01:02:40,640
Speaker 3: So I have now people that clerk for me twenty

1105
01:02:40,720 --> 01:02:44,200
Speaker 3: years ago. They're in the you know, the midst of

1106
01:02:44,240 --> 01:02:48,920
Speaker 3: their professional career, leaders in the bar, or leaders in academia,

1107
01:02:49,000 --> 01:02:53,760
Speaker 3: or leaders in business, and they're real listening boards. We

1108
01:02:53,840 --> 01:02:55,960
Speaker 3: have a reunion every year. It's coming up in a

1109
01:02:56,000 --> 01:02:58,800
Speaker 3: couple of weeks. Hopefully we'll have a good turnout. We

1110
01:02:58,880 --> 01:03:02,280
Speaker 3: usually do and you learn from them all that's going on.

1111
01:03:02,840 --> 01:03:04,680
Speaker 3: You know, what's going on in the law firms, and

1112
01:03:04,680 --> 01:03:07,440
Speaker 3: the people who are there will let you know what

1113
01:03:07,480 --> 01:03:08,640
Speaker 3: are they teaching in law.

1114
01:03:08,440 --> 01:03:09,280
Speaker 5: Schools these days?

1115
01:03:09,320 --> 01:03:10,760
Speaker 3: And they'll let you know what are you teaching in

1116
01:03:10,840 --> 01:03:13,960
Speaker 3: law schools these days? And it's nice to have that pipeline.

1117
01:03:14,000 --> 01:03:16,400
Speaker 3: I mean now I have almost one hundred out there

1118
01:03:16,440 --> 01:03:18,840
Speaker 3: at different stages, and it keeps you attuned to what's

1119
01:03:18,840 --> 01:03:19,240
Speaker 3: going on.

1120
01:03:19,920 --> 01:03:22,720
Speaker 5: I mentioned to you earlier today that I have you

1121
01:03:22,840 --> 01:03:24,960
Speaker 5: to thank you and Dave Lee Brown, who is the

1122
01:03:25,000 --> 01:03:27,960
Speaker 5: president of the Review, to thank for my clerkship. You

1123
01:03:28,040 --> 01:03:31,880
Speaker 5: sent me to or suggested that I apply tog Ervin

1124
01:03:31,920 --> 01:03:35,320
Speaker 5: Goldberg down in Dallas, Texas, and that was the best

1125
01:03:35,320 --> 01:03:38,680
Speaker 5: professional year of my life because, as I said to

1126
01:03:38,680 --> 01:03:41,959
Speaker 5: you earlier today, was a wonderful experience kind of being

1127
01:03:42,000 --> 01:03:44,000
Speaker 5: a judge, but not having the buck stop with you,

1128
01:03:44,360 --> 01:03:47,760
Speaker 5: so the pressure is not there, but the wonderful part

1129
01:03:47,840 --> 01:03:51,760
Speaker 5: of the job is and that makes clerking, I think,

1130
01:03:52,280 --> 01:03:58,720
Speaker 5: a really unique experience. So let's get to the Our

1131
01:03:58,720 --> 01:04:00,960
Speaker 5: time is running out. Let's get to the heart of

1132
01:04:01,000 --> 01:04:02,280
Speaker 5: what I want to talk to you about. There's a

1133
01:04:02,320 --> 01:04:11,160
Speaker 5: lot of buffalo bills fans here, yeah listen. Uh, and

1134
01:04:11,160 --> 01:04:14,840
Speaker 5: and when the playoffs come around, there's a lot of

1135
01:04:14,840 --> 01:04:22,320
Speaker 5: calls to go against us. Are you going to be

1136
01:04:22,320 --> 01:04:27,080
Speaker 5: around to handle some emergency appeals this season? You know,

1137
01:04:27,160 --> 01:04:30,040
Speaker 5: we're getting tired of the same old thing happening to us.

1138
01:04:30,040 --> 01:04:32,160
Speaker 5: A year after that hour, Yeah, I.

1139
01:04:32,120 --> 01:04:36,040
Speaker 1: Can see that. Yeah, Well, I uh was here long enough.

1140
01:04:36,080 --> 01:04:39,480
Speaker 3: I know I had a poster in my my room

1141
01:04:39,520 --> 01:04:42,439
Speaker 3: of Jack Kemp and quarter back and and I think

1142
01:04:42,520 --> 01:04:46,360
Speaker 3: I think Darryl Monica was there yep too, and uh,

1143
01:04:46,640 --> 01:04:50,040
Speaker 3: Pete Gogolak, who was the first soccer style yep kicker,

1144
01:04:51,920 --> 01:04:54,480
Speaker 3: even Cookie Gilchrist if I'm remembering that. So that was

1145
01:04:54,520 --> 01:04:56,520
Speaker 3: what was posting my Well, but I you know, I

1146
01:04:56,600 --> 01:04:59,560
Speaker 3: left when I was ten and we moved to, you know,

1147
01:05:00,280 --> 01:05:03,480
Speaker 3: in Indiana. The Chicago was the closest place. So I

1148
01:05:03,560 --> 01:05:10,480
Speaker 3: you're a Bears fan, I'm a Bears fan. But but look,

1149
01:05:10,520 --> 01:05:14,160
Speaker 3: when I was growing up, it was Dick Butkus, Mike

1150
01:05:14,240 --> 01:05:18,320
Speaker 3: Ditka and really if he hadn't blown out his knee,

1151
01:05:18,680 --> 01:05:22,439
Speaker 3: the greatest running back in NFL Hillas Gail Sayers and

1152
01:05:23,480 --> 01:05:26,120
Speaker 3: we were near. They had different connections with They would

1153
01:05:26,120 --> 01:05:29,680
Speaker 3: come and talk at our are the grade school even

1154
01:05:29,800 --> 01:05:32,560
Speaker 3: and because we were in in Indiana but on the

1155
01:05:32,640 --> 01:05:35,720
Speaker 3: lake and that people liked to go there, and it

1156
01:05:35,800 --> 01:05:36,240
Speaker 3: was just.

1157
01:05:36,960 --> 01:05:39,960
Speaker 5: Yeah, I say, Gail Sayers, I think was the most

1158
01:05:40,000 --> 01:05:42,840
Speaker 5: beautiful runner I've ever seen. He was. He just was

1159
01:05:42,880 --> 01:05:45,960
Speaker 5: so graceful and so much fun to watch. And it

1160
01:05:46,000 --> 01:05:47,280
Speaker 5: was a shame that he blew out his name.

1161
01:05:47,400 --> 01:05:49,680
Speaker 3: Yeah, I have a signed helmet of his, not of his,

1162
01:05:49,800 --> 01:05:53,240
Speaker 3: it's a bear's helmet that he signed in my chambers.

1163
01:05:53,320 --> 01:05:57,080
Speaker 5: Very cool. Yeah, well, thank you so much for doing this.

1164
01:05:57,080 --> 01:05:59,280
Speaker 5: This is an honor for me, and this was a

1165
01:06:00,280 --> 01:06:01,880
Speaker 5: very pleasurable hour.

1166
01:06:02,160 --> 01:06:03,360
Speaker 1: So well, not at all.

1167
01:06:03,400 --> 01:06:06,360
Speaker 3: Thank you for having me, give me the opportunity to

1168
01:06:06,360 --> 01:06:09,120
Speaker 3: go back and see my boyhood home and you know,

1169
01:06:09,600 --> 01:06:12,520
Speaker 3: we kindle memories of Buffalo.

1170
01:06:12,560 --> 01:06:13,200
Speaker 1: I appreciate it.

1171
01:06:13,240 --> 01:06:13,680
Speaker 5: We're proud.

1172
01:06:13,840 --> 01:06:15,000
Speaker 1: Thank you all for being.

1173
01:06:18,840 --> 01:06:19,960
Speaker 5: Thanks so great.

1174
01:06:21,280 --> 01:06:24,440
Speaker 4: So you're listening to Chief Justice John Roberts in a

1175
01:06:24,520 --> 01:06:29,400
Speaker 4: conversation with federal Judge Joseph Volardo in order to celebrate

1176
01:06:29,480 --> 01:06:31,760
Speaker 4: the one hundred and twenty fifth anniversary of the US

1177
01:06:31,840 --> 01:06:34,600
Speaker 4: District Court for the Western District of New York. The

1178
01:06:34,680 --> 01:06:38,080
Speaker 4: Chief Justice talked a lot about his personal background in

1179
01:06:38,120 --> 01:06:41,680
Speaker 4: the law, his clerking and by the way, he said

1180
01:06:41,680 --> 01:06:44,960
Speaker 4: he's not thinking of retiring anytime soon. He's going out

1181
01:06:45,000 --> 01:06:49,880
Speaker 4: feet first. He emphasized the importance of judicial independence and

1182
01:06:50,040 --> 01:06:53,760
Speaker 4: talked about the importance of good writing search petitions. I'm

1183
01:06:53,840 --> 01:06:57,000
Speaker 4: joined by Professor Harold Crunch of the Chicago Kent College

1184
01:06:57,000 --> 01:07:01,360
Speaker 4: of Law. Hal there was a lot about his personal background,

1185
01:07:01,680 --> 01:07:05,360
Speaker 4: not as much about what's been happening at the Supreme Court.

1186
01:07:05,480 --> 01:07:10,560
Speaker 4: He was ready for the question about the Court changing precedent,

1187
01:07:10,920 --> 01:07:14,280
Speaker 4: and the abortion decision was mentioned. He had the numbers

1188
01:07:14,440 --> 01:07:17,320
Speaker 4: saying it was the Roberts Court had the lowest rate

1189
01:07:17,360 --> 01:07:22,720
Speaker 4: of overturning cases in the last fifty years, but didn't

1190
01:07:22,720 --> 01:07:24,960
Speaker 4: get to the question about the abortion case.

1191
01:07:27,280 --> 01:07:31,240
Speaker 2: And I think he's right that sometimes overturning the case

1192
01:07:31,320 --> 01:07:34,919
Speaker 2: is in the nation's best interest. And he's also right

1193
01:07:35,040 --> 01:07:39,560
Speaker 2: that the percentage of which the Roberts Court has overturned

1194
01:07:39,600 --> 01:07:43,280
Speaker 2: cases is probably not out of kilter. But then it's

1195
01:07:43,360 --> 01:07:46,400
Speaker 2: up to everybody to decide the merits of the cases.

1196
01:07:46,400 --> 01:07:49,880
Speaker 2: And I think the issue is not simply the question

1197
01:07:50,080 --> 01:07:53,240
Speaker 2: of precedent and story decisives. It is what people think

1198
01:07:53,320 --> 01:07:55,400
Speaker 2: about decisions such as Dobbs.

1199
01:07:56,320 --> 01:07:59,640
Speaker 4: Also, what I found interesting is he was asked whether

1200
01:08:00,320 --> 01:08:04,560
Speaker 4: you think about, as a justice the consequences, the practical

1201
01:08:04,600 --> 01:08:07,680
Speaker 4: consequences of your decision, and for example, if it's a

1202
01:08:07,680 --> 01:08:12,120
Speaker 4: Second Amendment case, that more people will possibly get guns,

1203
01:08:12,600 --> 01:08:17,440
Speaker 4: and he said, no, you don't think about the practical decisions.

1204
01:08:18,920 --> 01:08:21,960
Speaker 2: And I noted that too, And I can't believe what

1205
01:08:22,000 --> 01:08:24,120
Speaker 2: he said on this particular point. I mean, give you

1206
01:08:24,160 --> 01:08:29,080
Speaker 2: an example. I mean, we talked before the fireside chat

1207
01:08:29,720 --> 01:08:33,080
Speaker 2: started that just the most recent decision with respect to

1208
01:08:33,680 --> 01:08:38,280
Speaker 2: the discharge of trans people from the military, that very

1209
01:08:38,320 --> 01:08:42,960
Speaker 2: decision is about consequences because of the procedural posture of

1210
01:08:42,960 --> 01:08:46,759
Speaker 2: the case. You couldn't decide that case without assessing directly

1211
01:08:47,040 --> 01:08:50,800
Speaker 2: what the consequences will be. And indeed, the consequences of

1212
01:08:50,840 --> 01:08:55,879
Speaker 2: the presidential immunity decision he wrote about directly in terms

1213
01:08:55,960 --> 01:09:02,160
Speaker 2: of defending his decision as to this almost absolutelymmunity for presidence,

1214
01:09:02,160 --> 01:09:07,120
Speaker 2: and he addressed it, you center, and in the decision itself.

1215
01:09:07,160 --> 01:09:09,840
Speaker 2: So I thought that was a little odd. I think

1216
01:09:09,880 --> 01:09:13,960
Speaker 2: what he was trying to say is that the justices

1217
01:09:14,000 --> 01:09:18,000
Speaker 2: are not politicians. I think that's important to re affirm

1218
01:09:18,080 --> 01:09:22,000
Speaker 2: that role, and that the justices shouldn't say we want

1219
01:09:22,000 --> 01:09:24,559
Speaker 2: to have this policy for the nation. So I agree

1220
01:09:24,560 --> 01:09:26,639
Speaker 2: with them on that point. But I do think it's

1221
01:09:26,760 --> 01:09:31,080
Speaker 2: difficult to say that justices can operate or do operate

1222
01:09:31,280 --> 01:09:33,280
Speaker 2: without thinking about the consequences.

1223
01:09:33,520 --> 01:09:36,800
Speaker 4: And we talked before he spoke about whether he would

1224
01:09:36,840 --> 01:09:40,200
Speaker 4: address some of the more controversial things that have been happening,

1225
01:09:40,240 --> 01:09:43,280
Speaker 4: and they asked him, I mean, just the judge Blardo

1226
01:09:43,400 --> 01:09:47,320
Speaker 4: asked him about the impeachment of judges, the request to

1227
01:09:47,360 --> 01:09:50,479
Speaker 4: impeach judges based on their decisions, and he got out

1228
01:09:50,479 --> 01:09:54,320
Speaker 4: of that. He got the answer out so quickly it

1229
01:09:54,400 --> 01:09:56,000
Speaker 4: was just over before it started.

1230
01:09:57,400 --> 01:09:59,559
Speaker 2: Yeah, but he did address it. I mean he said that,

1231
01:10:00,080 --> 01:10:03,080
Speaker 2: at least from the Supreme courts perspective, the way to

1232
01:10:03,080 --> 01:10:08,840
Speaker 2: deal with adventurous judges who are on the circuit courts

1233
01:10:08,920 --> 01:10:11,720
Speaker 2: or the district courts is to appeal or CURCHERAA or

1234
01:10:11,720 --> 01:10:14,680
Speaker 2: some other measure or mandamus in order to get that

1235
01:10:14,760 --> 01:10:19,360
Speaker 2: kind of correction from justices. And obviously, in our society,

1236
01:10:19,400 --> 01:10:22,200
Speaker 2: we believe that impeachment is for high crimes and misdemeanors

1237
01:10:22,240 --> 01:10:25,000
Speaker 2: that's in the Constitution, is not because you disagree with

1238
01:10:25,000 --> 01:10:28,760
Speaker 2: the decision. So it was a question. He reaffirmed his

1239
01:10:28,880 --> 01:10:33,040
Speaker 2: stance about the importance of judicial independence, but certainly the

1240
01:10:33,160 --> 01:10:36,080
Speaker 2: fireside check, so.

1241
01:10:36,439 --> 01:10:41,479
Speaker 4: How he's emphasized the importance of judicial independence, and that's

1242
01:10:41,520 --> 01:10:44,519
Speaker 4: something that we've heard from him over and over throughout

1243
01:10:44,560 --> 01:10:48,760
Speaker 4: the years, the importance of judicial independence. It becomes particularly

1244
01:10:48,760 --> 01:10:51,479
Speaker 4: important in the age that we're living in.

1245
01:10:53,360 --> 01:10:53,559
Speaker 5: Yeah.

1246
01:10:53,960 --> 01:10:56,479
Speaker 2: Absolutely, And obviously they didn't want to get it would

1247
01:10:56,479 --> 01:10:59,400
Speaker 2: have been inappropriate to get into involved in that sort

1248
01:10:59,439 --> 01:11:03,120
Speaker 2: of political tension between the executive branch and the judicial

1249
01:11:03,160 --> 01:11:06,920
Speaker 2: branch currently, but he did, and I think he did

1250
01:11:06,960 --> 01:11:13,599
Speaker 2: this fucial independence in our society. He said that's one

1251
01:11:13,640 --> 01:11:18,479
Speaker 2: of the most cardinal important aspects of features, I should say,

1252
01:11:18,520 --> 01:11:19,280
Speaker 2: of our constitution.

1253
01:11:20,479 --> 01:11:23,320
Speaker 4: Just a few minutes left here. Do you have anything

1254
01:11:23,479 --> 01:11:25,679
Speaker 4: that stood out to you besides what we've discussed.

1255
01:11:26,840 --> 01:11:29,200
Speaker 2: Absolutely, I had no idea that the Chief Justice was

1256
01:11:29,200 --> 01:11:29,880
Speaker 2: a Bears fan.

1257
01:11:33,360 --> 01:11:36,439
Speaker 4: They love to talk about sports in these conversations. Every

1258
01:11:36,479 --> 01:11:38,880
Speaker 4: time there's one of these Q and a's, the end

1259
01:11:38,960 --> 01:11:41,839
Speaker 4: up talking about sports, and particularly because they're from Buffalo.

1260
01:11:42,040 --> 01:11:44,760
Speaker 4: So now we know that he has a Gail Sayers

1261
01:11:44,800 --> 01:11:48,799
Speaker 4: signed helmet in his office. That's something that we always

1262
01:11:48,800 --> 01:11:49,320
Speaker 4: wanted to know.

1263
01:11:50,840 --> 01:11:51,680
Speaker 5: It's been great to go.

1264
01:11:52,000 --> 01:11:54,200
Speaker 4: It's been great having you on Hell. Thanks so much

1265
01:11:54,240 --> 01:11:58,040
Speaker 4: for taking the hour to talk with us, and I'm

1266
01:11:58,080 --> 01:12:01,720
Speaker 4: sure we'll be talking again soon. That's Professor Harold Krent

1267
01:12:02,120 --> 01:12:04,879
Speaker 4: of a Chicago Kent College of Law. He's an expert

1268
01:12:04,920 --> 01:12:09,000
Speaker 4: on constitutional law. And that's if the edition of the

1269
01:12:09,000 --> 01:12:12,840
Speaker 4: Bloomberg Law Show coming up. Next, We're going to hear

1270
01:12:12,920 --> 01:12:17,480
Speaker 4: from Bloomberg Wealth with David Rubinstein in our podcast Spotlight

1271
01:12:17,600 --> 01:12:20,599
Speaker 4: on Bloomberg Radio. Remember you can always get the latest

1272
01:12:20,640 --> 01:12:23,760
Speaker 4: legal news by listening to our Bloomberg Law podcast. You

1273
01:12:23,800 --> 01:12:27,640
Speaker 4: can find them on Apple Podcasts, Spotify and at Bloomberg

1274
01:12:27,680 --> 01:12:31,519
Speaker 4: dot com Slash podcast, Slash Law, and don't forget to

1275
01:12:31,560 --> 01:12:36,080
Speaker 4: subscribe to the podcast and listen every evening at six

1276
01:12:36,160 --> 01:12:39,200
Speaker 4: pm Wall Street Time to The Bloomberg Law Show